10 Marietta Street, LLC v. Melnick Properties, LLC

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10 MARIETTA STREET, LLC v. MELNICK
PROPERTIES, LLC, ET AL.
(AC 44833)
Prescott, Elgo and Cradle, Js.

Syllabus

The plaintiff, T Co., sought to recover damages for, inter alia, environmental
contamination to a parcel of land it owned, allegedly caused by hazard-
ous materials from a drainpipe that extended onto the land from an
adjacent parcel of property owned by the defendant M Co. The defen-
dants filed a motion for summary judgment, claiming that T Co. could
not meet its burden of production with respect to any of its causes of
action and arguing that T Co.’s responses to certain discovery failed to
provide them with clear and explicit details about the alleged contamina-
tion of T Co.’s property. 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 who had conducted an environmental study of T Co.’s
property. At the hearing on the motion, T Co. asserted that it had
presented sufficient evidence to raise a genuine issue of material fact
as to whether hazardous material from M Co.’s property had contami-
nated T Co.’s property. The trial court granted the motion for summary
judgment, and T Co. appealed to this court. Held that the trial court
improperly granted the defendants’ motion for summary judgment, this
court having concluded that there were genuine issues of material fact,
and the trial court’s conclusions to the contrary were not legally and
logically correct and were not supported by the record: to avoid summary
judgment, T Co. was not required to prove its causes of action to the
satisfaction of the trial court, and the defendants did not attempt to
delineate or explain the substantive law governing any of T Co.’s com-
mon-law or statutory claims, failing to set forth how the purported
deficiencies in the evidentiary record necessarily established a lack of
a genuine issue of material fact with respect to any particular element
of any of the causes of action alleged in T Co.’s complaint; moreover,
rather than demonstrating how they met the legal standard for granting
a motion for summary judgment, the defendants’ motion principally
was founded on their argument that T Co. failed to answer certain
interrogatories served on it, and, to the extent the court’s granting of
summary judgment focused too narrowly on this argument and thus
could be construed as sanctioning T Co. for some perceived failure to
comply with discovery, summary judgment was a wholly improper vehi-
cle by which to do so; furthermore, even if the defendants met their
initial burden of demonstrating the absence of any genuine issue of
material fact, T Co. presented evidence in opposition to the motion for
summary judgment that demonstrated its entitlement to a trial, as a
trier of fact might reasonably infer from the evidence presented that
contaminants in T Co.’s soil came from the drainpipe attached to the
defendants’ building and that, given their exclusive control over the
property, the defendants, either directly or through negligence, were
responsible for allowing the contaminants to enter the drain.
Argued April 11—officially released November 1, 2022

Procedural History

Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where Kathleen A. Bednarcik was cited in as
a party defendant; thereafter, Kathleen A. Bednarcik,
executrix of the estate of George Bednarcik, was substi-
tuted for the defendant George Bednarcik; subse-
quently, the court, Wahla, J., granted the motion for
summary judgment filed by the defendants, from which
the plaintiff appealed to this court. Reversed; further
proceedings.
Leonard C. Reizfeld, for the appellant (plaintiff).
Joshua A. Winnick, for the appellees (defendants).
Opinion

PER CURIAM. The plaintiff, 10 Marietta Street, LLC,
appeals from the summary judgment rendered by the
trial court in favor of the defendants, Melnick Proper-
ties, LLC, Kenneth Maratea, Ellen Maratea, and Kath-
leen 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 contami-
nation of the plaintiff’s property. We agree with the
plaintiff that genuine issues of material fact exist regard-
ing whether one or more of the defendants are legally
responsible for the alleged contamination of the plain-
tiff’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 plain-
tiff. 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 pres-
ent 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, Compensa-
tion, 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 incorpo-
rated by reference as part of each count of the com-
plaint. 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 build-
ing 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 allega-
tion 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, hydrocar-
bons, 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 defen-
dants 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 evi-
dentiary 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 con-
taminants 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 memoran-
dum 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 plain-
tiff’s property] . . . .’’ He further averred that the metal
pipe extended about two feet onto the plaintiff’s prop-
erty 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, indi-
cated 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 plain-
tiff’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 defen-
dants’ 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 suffi-
cient 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 plain-
tiff 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 post-
card 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 pro-
duction pertaining to the plaintiff’s allegations in its
complaint, [e]specially as to the paragraph 12, danger-
ous, hazardous and toxic levels of oil, solvents, hydro-
carbons, 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 hap-
pened, how it happened and when it happened, and/or
the sources of and the basis of its allegation. The plain-
tiff 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 build-
ing . . . to store his oil delivery trucks.
‘‘The court concludes that if the plaintiff is unwilling
and/or unable to provide the basic minimum informa-
tion—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 plain-
tiff 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 reason-
ably 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 defen-
dants. According to the plaintiff, at the very least, this
evidence raised a genuine issue of material fact regard-
ing the alleged flushing of contaminants down the build-
ing’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 of law.
We begin with generally applicable principles of law,
including our standard of review. ‘‘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 evi-
dence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing the absence of any genuine
issue of material fact . . . . [T]he party moving for
summary judgment is held to a strict standard. [The
moving party] 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.
. . . A material fact is a fact that will make a difference
in the result of the case. . . . Because the court’s deci-
sion on a motion for summary judgment is a legal deter-
mination, our review on appeal is plenary.’’ (Citations
omitted; internal quotation marks omitted.) Walker v.
Housing Authority, 148 Conn. App. 591, 596, 85 A.3d
1230 (2014). ‘‘[W]e must [therefore] decide whether [the
trial court’s] conclusions are legally and logically cor-
rect and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) McFarline
v. Mickens, 177 Conn. App. 83, 90, 173 A.3d 417 (2017),
cert. denied, 327 Conn. 997, 176 A.3d 557 (2018).
Having reviewed the summary judgment record,
including the pleadings, affidavits and other proof sub-
mitted by the parties, as well as the briefs and arguments
before this court, we conclude that genuine issues of
material fact exist that should have precluded the court
from rendering judgment in favor of the defendants as
a matter of law.
To avoid summary judgment, the plaintiff was not
required to prove its causes of action to the satisfaction
of the trial court. ‘‘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.’’ (Emphasis added; internal quota-
tion marks omitted.) Episcopal Church in the Diocese
of Connecticut v. Gauss, 302 Conn. 408, 421–22, 28 A.3d
302 (2011), cert. denied, 567 U.S. 924, 132 S. Ct. 2773,
183 L. Ed. 2d 653 (2012). Moreover, ‘‘[a]n important
exception exists . . . to the general rule that a party
opposing summary judgment must provide evidentiary
support for its opposition, [although] that exception
has been articulated in our jurisprudence with less fre-
quency 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 com-
plaint. . . . 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.’’ (Emphasis added; internal quotation
marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844,
850–51, 939 A.2d 1249 (2008).
The defendants’ motion for summary judgment, like
the court’s memorandum of decision granting that
motion, does not attempt to delineate or explain the
substantive law governing any of the plaintiff’s com-
mon-law or statutory claims. In particular, the defen-
dants fail to set forth how the purported deficiencies
in the evidentiary record identified in the motion for
summary judgment necessarily establish a lack of a
genuine issue of material fact with respect to any partic-
ular element of any of the causes of action alleged in
the complaint. In the absence of such analysis, we are
left to speculate as to the precise nature of the defen-
dants’ summary judgment claims and whether and how
they are applicable to the thirty counts of the complaint.
We decline to do so. After all, the defendants have the
burden of establishing their entitlement to summary
judgment, and courts must ‘‘hold the movant to a strict
standard.’’ (Internal quotation marks omitted.) Baldwin
v. Curtis, supra, 105 Conn. App. 848; see also Rickel v.
Komaromi, 144 Conn. App. 775, 792, 73 A.3d 851 (2013)
(‘‘[i]n assessing a motion for summary judgment, we
hold the movants to their burden of showing that it is
quite clear what the truth is’’ (internal quotation marks
omitted)).
Moreover, rather than demonstrating how they met
the legal standard for granting a motion for summary
judgment, the defendants’ motion for summary judg-
ment principally is founded on their argument that the
plaintiff failed to answer certain interrogatories served
on it by the defendants. To the extent that the court’s
granting of summary judgment focused too narrowly
on this argument and thus could be construed as sanc-
tioning the plaintiff for some perceived failure to com-
ply with discovery, summary judgment is a wholly
improper vehicle by which to do so. See generally Mill-
brook Owners Assn., Inc. v. Hamilton Standard, 257
Conn. 1, 17, 776 A.2d 1115 (2001) (articulating require-
ments for imposition of discovery sanctions and reiter-
ating that ‘‘[t]he sanction of dismissal should be
imposed only as a last resort, and where it would be
the only reasonable remedy available to vindicate the
legitimate interests of the other party and the court’’
(internal quotation marks omitted)).
Finally, even if we were able to determine that the
defendants met their initial burden of demonstrating
the absence of any genuine issue of material fact, we
would agree with the plaintiff that it presented evidence
in opposition to the motion for summary judgment that
demonstrated its entitlement to a trial. As the defen-
dants conceded at oral argument before this court, the
trial court improperly seemed to have determined that,
to prevail in its opposition to summary judgment, the
plaintiff needed to produce evidence of who placed
contaminants into the drainpipe, the nature of those
contaminants, how the contaminants came to be in
the drainpipe, and when this occurred. The plaintiff
certainly was not required, in defense of summary judg-
ment, to provide the defendants or the court with any
and all evidence needed to prove its case at trial. It was
enough to present evidence that raised a disputed issue
of material fact that needed to be resolved by a fact
finder, thus defeating the defendants attempt to show
the nonexistence of any disputed material facts. The
plaintiff met this obligation.
In his sworn affidavit, Jones averred that ‘‘there was
a buried metal pipe which exited the abutting building
at 24 Marietta Street onto [the plaintiff’s property]
. . . .’’ Jones further averred that contaminants were
found in soil samples taken from areas on the plaintiff’s
property in which there were breaks in the piping, and
that ‘‘[t]he residue samples from the [piping] showed
higher concentrations of the same type[s] of contami-
nants that were found in the soil.’’ Jones’ affidavit and
accompanying report additionally tends to demonstrate
that the types of oil like contaminants found in the soil
samples were consistent with the types of businesses
and activities that had operated at 24 Marietta Street,
and thus provided an additional causal link between
the contaminants found on the plaintiff’s property and
the activities of the defendants.9 The defendants do not
argue that Jones’ affidavit and report were improper
summary judgment evidence. The affidavit of the defen-
dant Kenneth Maratea also reflects that the defendants
or their tenants maintained exclusive control over the
premises for the duration of their ownership of the
property. A trier of fact might reasonably infer from
the aforementioned evidence that the contaminants in
the plaintiff’s soil came from the drainpipe attached to
the defendants’ building and that, given their exclusive
control over the property, the defendants, either
directly or through negligence, were responsible for
allowing the contaminants to enter the drain. It is true
that the defendant Kenneth Maratea, in his answer to an
interrogatory, wrote that the floor drain was somehow
sealed or closed up. Nevertheless, viewed in the light
most favorable to the nonmoving party, the proffered
evidence clearly establishes disputed issues of material
fact that entitle the plaintiff to a trial on the merits,
leaving such factual disputes to be resolved at trial
rather than by the trial judge in adjudicating a motion
for summary judgment.
We conclude that there are genuine issues of material
fact that preclude the granting of summary judgment.
The trial court’s conclusions to the contrary are not
legally and logically correct and are not supported by
the record. Accordingly, the court improperly granted
the defendants’ motion and rendered summary judg-
ment in favor of the defendants.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
1
Kathleen Bednarcik is named as a defendant in her individual capacity
and in her representative capacity as both the executrix of the estate of
George Bednarcik and as trustee of a revocable trust in her own name.
George Bednarcik originally was named a defendant but died during the
pendency of the action.
2
General Statutes § 22a-16 provides in relevant part: ‘‘[A]ny person, part-
nership, corporation, association, organization or other legal entity may
maintain an action in the superior court for the judicial district wherein the
defendant is located, resides or conducts business . . . for declaratory and
equitable relief against . . . any person, partnership, corporation, associa-
tion, organization or other legal entity . . . for the protection of the public
trust in the air, water and other natural resources of the state from unreason-
able pollution, impairment or destruction . . . .’’
3
General Statutes § 22a-452 provides in relevant part: ‘‘(a) Any person,
firm, [or] corporation . . . which contains or removes or otherwise miti-
gates the effects of oil or petroleum or chemical liquids or solid, liquid or
gaseous products or hazardous wastes resulting from any discharge, spillage,
uncontrolled loss, seepage or filtration of such substance or material or
waste shall be entitled to reimbursement from any person, firm or corpora-
tion for the reasonable costs expended for such containment, removal, or
mitigation, if such oil or petroleum or chemical liquids or solid, liquid or
gaseous products or hazardous wastes pollution or contamination or other
emergency resulted from the negligence or other actions of such person,
firm or corporation. . . .’’
4
CERCLA, also known as the Superfund Act, was enacted ‘‘in response
to the serious environmental and health risks posed by industrial pollution’’
and ‘‘was designed to promote the timely cleanup of hazardous waste sites
and to ensure that the costs of such cleanup efforts were borne by those
responsible for the contamination.’’ (Internal quotation marks omitted.)
Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S.
599, 602, 129 S. Ct. 1870, 173 L. Ed. 2d 812 (2009).
5
Specifically, paragraphs seven, eight, nine, and fifteen of the operative
complaint provide in relevant part: ‘‘7. When the [building at 24 Marietta
Street was constructed], George Bednarcik . . . intentionally cause[d] two
interconnected floor drains to be installed in the building which was then
piped out and onto the property now known as 0 Marietta Street . . .
without the knowledge or permission of the property owner . . . .
‘‘8. George Bednarcik . . . intentionally [buried] the floor drainpipe exit-
ing the building . . . onto the abutting property . . . to hide his knowingly
illegal activity of trespass and draining hazardous material[s]. . . .
‘‘9. . . . [A]ll of the [d]efendants . . . had knowledge of, or reasonably
should have had knowledge of the illegal and deceptive actions of . . .
George Bednarcik. . . .
‘‘15. . . . [T]he [d]efendants knew or should have known, in the exercise
of due care and reasonable inspection, that dangerous, hazardous and toxic
levels of oil, solvents, hydrocarbons, metals and the like were being flushed
down the floor drains and onto the abutting property and into the ground
water.’’
6
At the hearing on the motion for summary judgment, the defendants’
counsel summarized his argument as follows: ‘‘So, the claim in the motion
for summary judgment is if the plaintiff cannot prove when and how and
who flushed the contaminants down the drain, he can’t prove his case. And,
therefore . . . summary judgment should enter for the defendants because
without proof . . . of all these flushing, the plaintiff has no case.’’
7
In addition to Jones’ affidavit, the plaintiff submitted, inter alia, affidavits
of the defendants Kenneth Maratea, Ellen Maratea, and Kathleen Bednarcik;
certified records from the Department of Motor Vehicles; and building per-
mits for the 24 Marietta Street property.
8
At oral argument on the motion for summary judgment, the plaintiff, in
addition to arguing that a property owner has strict liability under both the
federal and state statutes for any contamination that emanates from the
owner’s property, argued that ‘‘if a landlord owns a piece of property and
they have multiple tenants, that if the landlord can determine who dumped
what down . . . their drains and contaminated the neighbors, then . . .
the obligation is on them to prove it. If they can’t prove it, it’s joint and
several liability.’’
9
Jones averred in his affidavit that ‘‘laboratory results of the contaminants
found in the soil resembled diesel fuel or #2 heating oil however based on
the absence of volatile organic compounds (VOC’s) and the presence of
elevated metals, crankcase oils may also be a source.’’ The report stated
that city directory listings showed that the 24 Marietta Street building had
been occupied at various times by various types of automobile and motorcy-
cle repair businesses and clubs, a house cleaning operation, and various
contractors. The defendant Kathleen Bednarcik also averred in her affidavit
that George Bednarcik had used the building for a number of years as a
parking garage for an oil truck.