author: FOTI, J.

text:
    DAISY HERNANDEZ v. WILLIAM CIRMO
    (AC 21138)
    Foti, Flynn and O’Connell, Js.
    Argued October 30, 2001
    officially released January 8, 2002

      Neil Johnson, for the appellant (plaintiff).

      Albert G. Danker, Jr., for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff in this medical malpractice action, Daisy Hernandez, appeals from the judgment of the trial court, which was rendered after it granted the motion for summary judgment that was filed by the defendant, William Cirmo, a licensed physician engaged in the practice of gynecology and obstetrics. The plaintiff claims that the court improperly (1) rendered summary judgment and (2) failed to accept additional evidence. We affirm the judgment of the trial court.

The plaintiff filed her original complaint in this action on April 23, 1999. She alleged that the defendant negligently performed a tubal fulguration procedure on her on March 17, 1995. She further alleged that as a result of the defendant’s negligence, she became pregnant and, on September 16, 1998, gave birth to a child. She alleged that February, 1998, was the earliest time at which she reasonably could have known of her pregnancy. She claimed that the defendant was negligent in several specific ways in his care and treatment of her during the tubal fulguration procedure. She also claimed that the defendant “negligently failed to warn and/or inform [her] of the possibility and/or probability of an unsuccessful tubal ligation as a result of [the] defendant’s surgical procedure.” Finally, she alleged that the defendant’s negligence caused her to sustain additional medical treatment, and will cause her to incur future expenses for raising, educating and caring for her child.

The defendant denied that he negligently treated the plaintiff. He pleaded, as a special defense, that the repose section of the statute of limitation, General Statutes § 52-584, barred the action because the plaintiff commenced the action more than three years after the occurrence of the act complained of in her complaint. The defendant thereafter filed a motion for summary judgment on those grounds. He argued that the three year limitation period in § 52-584 began to run from the date on which the defendant performed the tubal fulguration procedure, March 17, 1995. The court initially denied the motion without prejudice to afford the plaintiff an opportunity to depose the defendant. The defendant subsequently renewed the motion and, after conducting a hearing, the court granted the motion. This appeal followed.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 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. See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). It is not enough, however, for the opposing party merely to assert the existence of ... a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994). Branford v. Monaco, 48 Conn. App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). In deciding a motion for summary judgment, the trial court must view the evidence in the fight most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 387, 717 A.2d 811 (1998), aff'd, 252 Conn. 153, 745 A.2d 178 (2000).

Although the plaintiff does not dispute the fact that she brought the present action more than three years after the date of her surgery, she claims that the statute of limitations was tolled. The statute of limitations may be tolled under the continuous treatment or the continuing course of conduct doctrine. Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). To state a claim that satisfies either doctrine, a party must produce evidence of the breach of a duty that existed “after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.” (Internal quotation marks omitted.) Id., 275. Courts have upheld findings that such a duty existed in cases where there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or later wrongful conduct of a defendant related to the prior act. Id. Our Supreme Court has stated that “[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). As such, our review of the trial court’s conclusions is plenary.

“In deciding whether the trial court properly granted the defendant’s motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty.” Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000).

We first consider whether a genuine issue of material fact existed with respect to whether the defendant committed an initial wrong as to the plaintiff. The plaintiff alleged in her complaint that the defendant negligently performed the tubal fulguration procedure and negligently failed to warn her of an increased risk that the procedure could fail. The plaintiff also submitted the affidavit of her expert medical witness, Joel Evans. Evans reviewed the defendant’s operative notes and, on the basis of the information available to the defendant during the procedure, averred that he should have recognized the increased chances that the procedure could fail and should have ordered follow-up testing to determine its effectiveness. Although the defendant denied those allegations, he failed to produce an evidentiary foundation to eliminate the existence of the alleged initial medical malpractice. Accordingly, the plaintiff demonstrated the existence of a genuine issue of material fact in regard to that issue.

We next consider whether a genuine issue of material fact existed as to whether the defendant owed the plaintiff a duty of care that remained in existence after March 17, 1995, the date of the tubal fulguration procedure. The plaintiff does not dispute that there was no evidence to demonstrate the existence of a special relationship between the parties or that the parties were engaged in a continuing coruse of treatment. In the absence of either of those showings, the plaintiff needed to demonstrate the existence of a genuine issue of material fact as to whether the defendant had committed some affirmative acts of misconduct or acts of omission that related to the alleged initial negligent act. Id., 371.

The plaintiff claims that the defendant’s subsequent wrongful conduct was a continued act of omission. The plaintiff argued before the trial court that the defendant had “a duty to warn the plaintiff of the consequences of his actions ... at the time they occurred.” The defendant averred that the last date on which he provided any treatment to the plaintiff was March 17,1995. He also averred that he was unaware, both before and after performing the procedure, that the procedure had a greater than normal risk of failing.

The plaintiff points out that the defendant’s operative notes, as well as his deposition testimony, demonstrate that he was aware of the presence of scar tissue on her fallopian tubes. She posits that because he knew of that condition, he should have also known that there were increased risks that the procedure could fail and that he should have communicated those risks to her. The only evidence that the plaintiff submitted to the court in regard to whether the defendant had any knowledge of an increased risk that her procedure could fail was in the form of Evans’ affidavit, the defendant’s operative notes and her argument that the defendant should have been aware of an increased risk. On the basis of his review of the defendant’s operative notes and the transcript of the defendant’s deposition, Evans averred that it was his expert medical opinion that the defendant owed the plaintiff “a duty to inform [her] of the complications and order follow-up care, tests and/or surgery.”

In Will, our Supreme Court faced a similar issue. The plaintiff in Will claimed that the defendant pathologist negligently failed to warn him that certain tissue analysis performed by him revealed that the plaintiff was suffering from a dangerous medical condition. In 1983, the defendant had examined a tissue sample and issued a report in which he did not describe the plaintiffs condition as serious. The plaintiff alleged that he had relied on that diagnosis. Eleven years later, in 1994, the plaintiff discovered that the condition that the defendant had evaluated in 1983 was, in fact, life threatening. Additionally, there was evidence that the defendant had told the plaintiffs treating physician in 1994 that there was a concern at the time of the original diagnosis that the plaintiff suffered from a life threatening condition and that the defendant believed that a follow-up examination would be appropriate. The plaintiff argued that the defendant’s initial 1983 report was not complete and that the defendant’s subsequent 1994 communication to his physician, expressing concern for the plaintiffs condition as of the time of the diagnosis, evidenced the defendant’s awareness that the plaintiff was at an increased risk. Our Supreme Court concluded that the plaintiff had demonstrated that the defendant knew of a specific risk to the plaintiff in 1983 and failed to communicate that risk to the plaintiff. The court stated that the evidence that the defendant had knowledge of the risk “gave rise to the defendant’s continuing duty to warn, which in turn triggered the continuing course of conduct doctrine.” Id., 372.

The present case is distinguishable. Here, the plaintiff has not demonstrated that the defendant knew, at any time, of any increased risk. While the defendant’s operative notes reflect that the defendant was aware of scarring in the plaintiffs fallopian tubes at the time of the tubal fulguration procedure, they do not reflect that this scarring caused the defendant concern in any way, even if the plaintiff could have shown that such scarring should have caused such concern. The defendant pathologist in Witt later communicated to the plaintiffs physician in a written note that at the time of the diagnosis, there were concerns that the plaintiff might be suffering from a life threatening condition. That evidenced that the defendant had awareness of a risk. Here, the plaintiff has not presented any like evidence.

Likewise, the plaintiff in Witt alleged in his complaint that the defendant “was aware” of the specific risk involved in that case. Here, the plaintiff alleged in her complaint simply that the defendant had failed to warn her of a risk. She continually argues that the defendant “should have” known of those risks. She argued to the court that “it is the defendant’s lack of knowledge on the risks of this procedure that is the essence of this case.” Although the defendant may have acted negligently by failing to realize a risk when he should have, that is not the issue before us. The issue before us is whether the defendant was under a continuing legal duty to warn the plaintiff of a specific risk.

The plaintiff argues that Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981), applies to the present case. She posits that “[t]he negligent failure to warn is a continuing course of conduct.” Although we are bound by Cross, we do not interpret that decision to stand for the proposition that all claims of negligent failure to warn in medical malpractice cases fall under the continuous course of conduct doctrine. Such a broad interpretation would have the effect of eviscerating the statute of limitations.

The Supreme Court in Cross held that the trial court improperly concluded that the plaintiffs claim did not fall under the continuous course of conduct doctrine. The plaintiff had claimed that one of the defendant physicians failed to warn her of the harmful side effects of a drug that he prescribed to her. The court concluded that the statute of limitations was tolled because the plaintiff continued to ingest the drug over a period of time during which the defendant failed to warn her of the risks involved. In other words, the evidence demonstrated the existence of a long-standing physician-patient relationship between the parties. Importantly, the court noted that the defendant had failed to “point to any evidence from which the jury could have concluded that this continuing course of conduct terminated more than three years before suit was brought.” Id. Although “no ongoing relationship is required for the continuing course of conduct doctrine to apply”; Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 529, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001); the presence of a long-term and continuing physician-patient relationship in Cross weighed in favor of the applicability of the doctrine.

In Golden, the plaintiff argued that his claim fell under the continuing course of conduct doctrine because the defendant pathologist in that case breached his duty to warn the plaintiff of an increased medical risk following an original misdiagnosis. As in the present case, the only evidence adduced that the defendant actually had knowledge that the plaintiff was at risk came in the form of an affidavit from the plaintiffs expert medical witness, who attested that the defendant “should have known” of his original misdiagnosis and the attendant increased risks related to that misdiagnosis. Id., 527.

As in Golden, there is nothing in the record before us to demonstrate that the defendant had any concern about an increased risk. Likewise, we conclude that “to expect [the defendant] to provide follow-up treatment or to instruct [the plaintiff] on follow-up care after a negative diagnosis when there is no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy.” Id., 529. Here, the plaintiff failed to demonstrate that the defendant was aware of a misdiagnosis or an increased risk. Although the duty to monitor a patient, even after a negative diagnosis or a seemingly successful medical procedure may be found in certain cases, it customarily arises out of an ongoing physician-patient relationship. See id. As we have discussed, no such relationship existed here.

We have previously recognized that in summary judgment cases, “[t]he inference which may ordinarily be drawn from the failure of a party to file an opposing affidavit is not warranted where the other party is the only person having knowledge of the particular facts involved.” (Internal quotation marks omitted.) Nolan v. Borkowski, 206 Conn. 495, 504, 538 A.2d 1031 (1988); see also Kroll v. Sebastian, 58 Conn. App. 262, 267, 753 A.2d 384 (2000) (nonmovant’s failure to recite specific facts to contradict those stated in movant’s papers to show existence of genuine issue of fact “is not fatal [to his or her case] if the only evidence available to the nonmovant is within the personal knowledge of the movant”). The application of that rule, however, is better suited in cases in which the issues involve “questions of motive, intent and subjective feelings and reactions.” (Internal quotation marks omitted.) Nolan v. Borkowski, supra, 505.

We would not expect the plaintiff to somehow counter the defendant’s averments about his lack of awareness of a risk with her own affidavit concerning what he was aware of concerning an increased risk. To so require would ask the plaintiff to perform an impossible task. Our review of the granting of a motion for summary judgment in such a case is to ask whether, under the circumstances of the particular case, the absence of a counteraffidavit should have affected the outcome.

We conclude that summary judgment was appropriate under the circumstances of this case. The plaintiff failed to counter the defendant’s affidavit with any evidence to demonstrate that the defendant had an awareness of risk. The plaintiffs allegations required her to provide evidence of the defendant’s awareness of risk. Viewing the evidence that she presented in the light most favorable to her, we cannot say that she has met that burden. Speculative evidence about whether a defendant physician was aware of a specific medical risk cannot serve as a basis for opposition to a motion for summary judgment. The evidence did not demonstrate in any way that the defendant was aware of an increased risk or that he ever was made aware that the plaintiff was at an increased risk. As such, her assertions concerning what the defendant should have been aware of would not have supported a judgment for the plaintiff, and the summary judgment therefore was rendered properly.

Our Supreme Court explained this principle in a case involving a claim against a physician for an alleged failure to warn following a misdiagnosis. The court “disagree [d] with the premise that a physician who has performed a misdiagnosis has a continuing duty to correct that diagnosis in the absence of proof that he subsequently learned that his diagnosis was incorrect.” Blanchette v. Barrett, supra, 229 Conn. 284. The Supreme Court further explained that “[t]o apply such a doctrine to a medical misdiagnosis would, in effect, render the repose part of the statute of limitations a nullity in any case of misdiagnosis.” Id. Those concerns apply with equal force to the present case, which deals with a physician who allegedly failed to be aware of an increased risk.

The court in the present case had nothing before it that would establish a genuine issue of material fact as to whether the defendant later committed wrongful conduct related to the initial negligent act that was alleged in the complaint or whether a special relationship existed between the parties after the date of the initial allegedly negligent act. The evidence clearly reflected that neither scenario existed. Accordingly, the plaintiffs claim must fail under the three year statute of limitations, § 52-584.

We have reviewed the plaintiffs additional claim that the court improperly failed to accept supplemental evidence and conclude that it is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a revised complaint on June 21, 1999. By written requests filed September 1, 1999, and May 9, 2000, she requested leave to amend her revised complaint. The court did not act upon those requests, and the record does not reflect that the defendant objected to them. Pursuant to Practice Book § 10-60 (a), the plaintiffs latest amended complaint of May 9, 2000, is the operative complaint.

       Tubal fulguration involves the destruction of tissue in the fallopian tubes by means of high frequency electric sparks. It is intended to prevent the passage of ova from the ovaries to the uterus and is used as a method of female sterilization.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the ipjury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . .

       The basis of that claim is unclear. The plaintiff argues that at the hearing on the motion for summary judgment, she requested from the court the opportunity to submit additional affidavits or live testimony from her expert witness. As she admits, the court neither accepted nor declined her offer. The record does not reflect that the plaintiff did submit additional evidence, that the court refused to accept such supplemental evidence or that the plaintiff requested a continuance in that regard. “Where . . . the party opposing summary judgment timely presents Ms affidavit . . . stating reasons why he is presently unable to proffer evidentiary affidavits he directly and forthrightly invokes the trial court’s discretion.” (Internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 806, 732 A.2d 207 (1999). On the record before us, wMch reflects that the plaintiff had approximately one year to prepare for the hearing on the defendant’s motion, we are unable to find an abuse of the court’s discretion. See also Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 761, 785 A.2d 588 (2001) (no abuse of discretion in allowing defendants’ filing of supplemental motion for summary judgment as plaintiff had ample time to prepare opposition to such motions).


source: Caselaw Access Project

license: Public Domain

text:
    DIANE NIEVES v. WILLIAM CIRMO
    (AC 21139)
    Foti, Flynn and O’Connell, Js.

      Argued November 29, 2001
    officially released January 8, 2002

      Neil Johnson, for the appellant (plaintiff).

      Albert G. Danker, Jr., for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff in this medical malpractice action, Diane Nieves, appeals from the judgment of the trial court, rendered after the court granted the motion for summary judgment that was filed by the defendant, William Cirmo, a licensed physician engaged in the practice of gynecology and obstetrics. The plaintiff claims that the court improperly (1) rendered summary judgment and (2) failed to accept additional evidence. We affirm the judgment of the trial court.

The plaintiff filed her original complaint in this action on April 7, 1999. She alleged that the defendant negligently performed a tubal fulguration procedure on her on May 24, 1995. She alleged that as a result of the defendant’s negligence, she became pregnant and, on January 26, 1998, gave birth to a child. She alleged that April, 1997, was the earliest time at which she reasonably could have known of her pregnancy. She claimed that the defendant committed negligent acts and omissions during the procedure and that, at the time of the procedure, he “failed to recognize that the laparoscopic tubal fulguration was not likely to succeed in light of [the] plaintiffs condition and immediately stop said procedure.” The plaintiff further alleged that the defendant failed to effectuate the procedure and that he should have informed her that the procedure “as performed was not likely to be effective.” More specifically, she alleged that the defendant “negligently failed to warn and/or inform [the] plaintiff of the possibility and/or probability of an unsuccessful tubal ligation as a result of [the] defendant’s surgical procedure.” She also alleged that the defendant negligently failed to order a follow-up procedure after the initial procedure. Finally, she alleged that the defendant’s negligence caused her to sustain additional medical treatment, and will cause her to sustain additional expenses for raising, educating and caring for her child.

The defendant denied having negligently treated the plaintiff and pleaded, as a special defense, that the repose section of the statute of limitation, General Statutes § 52-584, barred the plaintiffs action because she brought it more than three years after he performed the procedure on her. The court thereafter granted the defendant’s motion for summary judgment on those grounds. This appeal followed.

“Summaiy 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. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact .... If the nonmovant does not recite specific facts . . . that contradict those stated in the movant’s affidavits and documents and show there is a genuine issue for trial, summary judgment shall be rendered against him.” (Citation omitted; internal quotation marks omitted.) Chase Manhattan Bank v. CDC Financial Corp., 54 Conn. App. 705, 708, 736 A.2d 938, cert. denied, 251 Conn. 912, 739 A.2d 1247 (1999). As this appeal raises a question of law, our review is de novo. Vogel v. Maimonides Academy of Western Connecticut, Inc., 58 Conn. App. 624, 628, 754 A.2d 824 (2000).

The plaintiff alleged that the defendant negligently proceeded to perform the tubal fulguration procedure after he became aware of the presence of a hydrosalpinx in one of her fallopian tubes. That abnormal condition of the fallopian tubes is marked by distension, or swelling, of the tubal walls. She further alleged that the defendant failed to undertake steps to effectuate the procedure in light of that condition and that he did not warn the plaintiff that due to that condition, there was an increased risk that the procedure could fail. To oppose the defendant’s motion for summary judgment, the plaintiff presented evidence to the court in the form of the defendant’s operative notes and his deposition testimony. That evidence demonstrated that the defendant was aware of the abnormal conditions in the plaintiffs fallopian tubes. It did not demonstrate that the defendant had any concerns as to whether he believed that he was unable to effectuate successfully the procedure or that he was aware of any increased risk that it could fail. To the contrary, the defendant’s deposition testimony reflected his belief that he could and did perform a successful procedure despite the abnormalities that he encountered during the procedure.

The plaintiff also submitted to the court the affidavit of her expert medical witness, Joel Evans, a physician engaged in the practice of gynecology and obstetrics. On the basis of his review of the defendant’s operative notes and the transcript of the defendant’s deposition, Evans averred that it was his expert opinion that the defendant owed the plaintiff a duty to inform her of the abnormal condition in her fallopian tube and to inform her of an increased risk that the procedure could fail because of the condition. He also opined that once the defendant was aware of the abnormal condition, the defendant should have either (1) terminated the procedure, (2) changed the manner in which he performed the procedure or (3) completed the procedure and ordered a follow-up procedure to determine its success.

The defendant submitted his own affidavit in support of his motion for summary judgment. He attested as to the extent of his relationship with the plaintiff. He met with her only twice: (1) the date that he met with her to discuss the procedure and (2) the date that he performed the procedure, May 24, 1995. He attested that the plaintiff never sought further treatment and that he did not treat her after the procedure.

The defendant further attested that prior to conducting the procedure, he informed the plaintiff of the usual risk that the procedure could fail. He noted that although he did observe some swelling in one of the plaintiffs fallopian tubes during the procedure, he was able to complete the procedure. He also stated: “At no time did I question the success of this procedure or believe that the presence of this swollen fallopian tube caused any change in the baseline risk that this procedure could fail.”

Although the plaintiff does not dispute that she brought the present action more than three years after the date of her surgery, she claims that the statute of limitations was tolled. The statute of limitation may be tolled under the continuous treatment or the continuing course of conduct doctrine. Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). A party states a claim that falls under the continuing course of conduct doctrine if he or she demonstrates evidence of a breach of a duty that existed “after commission of the original wrong related thereto.” (Internal quotation marks omitted.) Id., 275. In other words, the party alleging a claim under that doctrine must prove that, after an initial wrong, the wrongdoer breached a duty that continued to exist. Additionally, a party must demonstrate that such breach occurred within the statute of limitations. Parties are customarily able to avail themselves of that doctrine if they can demonstrate either that there was a special relationship between the parties giving rise to a continuing duty or later wrongful conduct of a defendant that was related to the prior act. Id. Determining whether a continuing duty exists is a question of law.

“In deciding whether the trial court properly granted the defendant’s motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty.” Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000).

We first consider whether a genuine issue of material fact exists with respect to whether the defendant committed an initial wrong as to the plaintiff. The plaintiff alleged in her complaint that the defendant negligently performed the tubal ligation procedure on her. Specifically, she alleged that he negligently continued to perform the procedure after he observed a hydrosalpinx. Additionally, she alleged that, once presented with that condition, the defendant negligently failed to perform the procedure in a different manner than he did. She further alleged that the defendant failed to effectuate a separation in or a closure of the fallopian tubes, that he negligently failed to warn her of the increased risk that the procedure could fail and that he failed to order additional procedures after the procedure he performed on her.

The plaintiff supported with sufficient expert medical evidence her allegations of negligence as to the way that the defendant performed the procedure. Although the defendant denied those allegations of negligence, he failed to eliminate the existence of a genuine issue of material fact concerning the propriety of his actions on May 24, 1995, the date of the plaintiffs procedure.

We now turn to the second prong of our analysis to ascertain whether the plaintiff demonstrated the existence of a genuine issue of material fact as to whether the defendant owed her a duty of care that remained in existence after May 24, 1995. The plaintiff does not assert that a special relationship existed between the parties or that the parties were engaged in a continuing course of treatment. The evidence does not support a finding in either regard. Accordingly, the plaintiff needed to demonstrate the existence of a genuine issue of material fact as to whether the defendant subsequently committed an act of omission or an affirmative act of misconduct that related to the original allegedly negligent act.

In the present case, the plaintiff urges us to find such an issue of material fact in acts of omission. She argues that the defendant had a continuing duty to warn her of the increased risk that her procedure could fail and breached that duty by failing to warn her of such risk. She further argues that this duty arose during the procedure and continued after the defendant completed his treatment of her. Her argument rests on the premise that the defendant should have been aware of an increased risk. She did not allege in her complaint that the defendant was aware of an increased risk. Furthermore, she did not submit any evidence to the court that demonstrated a genuine issue of material fact as to whether the defendant was actually aware of any increased risk. “Demonstrating 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.” (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).

We are bound to construe the plaintiffs evidence in the light most favorable to her case. Still, we conclude that the evidence that she presented in support of her allegation that the defendant continually breached a duty to warn is not sufficient to demonstrate the existence of a genuine issue of material fact with respect to that claim. Although the plaintiff might have stated a claim against the defendant within the statute of limitations for negligence in performing the procedure or for negligently failing to realize the existence of an increased risk that the procedure could fail, such a claim is not before us. To avail herself of the continuing course of conduct doctrine on the basis of a claim of a negligent failure to warn, the plaintiff needed to produce evidence that demonstrated that the defendant was aware of a risk that would have triggered a duty to warn. She did not do so. The plaintiff did not demonstrate that the defendant owed her a duty that continued after the date of the alleged initial negligent act and, accordingly, a finder of fact would be unable to find any breach of such duty.

Our appellate courts have had occasion to consider similar issues involving claims of medical malpractice and the continuing duty to warn. For example, the plaintiff relies on Sherwood v. Danbury Hospital, 252 Conn. 193, 746 A.2d 730 (2000). Although Sherwood is factually distinguishable, its analysis is instructive. In Sherwood, the plaintiff argued that the defendant hospital breached a continuing duty to warn that tolled the statute of limitations. In 1985, the plaintiff received a blood transfusion from the defendant hospital during treatment for congenital scoliosis. Id., 197. In 1994, she learned that she had contracted the human immunodeficiency virus (HIV). Id., 198. In 1995, she learned that the 1985 blood transfusion was the source of her virus. Id.

Our Supreme Court concluded that the plaintiff in Sherwood could state a claim against the defendant hospital in July, 1996, under the continuing course of conduct doctrine. The defendant argued that the doctrine did not apply and that the plaintiff had only three years following her treatment in 1985 to bring an action related to that treatment. Our Supreme Court concluded, however, that the plaintiff had demonstrated that the defendant owed her a duty that continued after the initial wrong she complained of and that she had demonstrated a factual basis on which a jury could find that the defendant continued to breach that duty. The Supreme Court noted that there was evidence that the defendant committed an initial wrong as to the plaintiff. A test for screening blood existed prior to the plaintiffs receiving the transfusion, the defendant’s employees assumed that the blood given to the plaintiff had not been tested, and no one associated with the defendant hospital informed the plaintiff that the blood had not been tested and that it could have been. Id., 206.

With respect to the issue of whether the defendant owed the plaintiff a continuing duty to warn, as she asseited, the Supreme Court considered an affidavit from the plaintiffs expert medical witness, a physician in charge of operating a blood bank at another hospital. The expert medical witness averred that in 1987, the Centers for Disease Control recommended to hospitals that transfusion recipients be advised that they were at risk and that they be offered HIV testing. She further averred that beginning in 1987, she directed a program at the hospital at which she was employed that notified transfusion recipients of the risk of contaminated blood and that she considered that response to be good medical practice. Id., 199, 207. Accordingly, the plaintiff in Sherwood presented evidence that the standard of care required the defendant to have taken steps to notify her, after the procedure, that she was at risk.

The plaintiff in Sherwood demonstrated that the defendant was aware of a risk to her. The director of the blood bank at the defendant hospital testified in a deposition that he learned of the existence of an approved method to screen blood for the presence of dangerous HIV antibodies sometime in 1985. He testified that neither he nor anyone else from the hospital had notified the plaintiff of the availability of that test. Id., 197. Shortly after the date of the plaintiffs transfusion, the American Red Cross, the source of the hospital’s blood supply, sent the defendant a letter, informing it that all future blood products distributed by the American Red Cross would be screened for the presence of the antibodies and that the defendant should return to the American Red Cross any untested blood remaining in the defendant’s inventory. The defendant complied with that request. That direct evidence, coupled with the statements of the plaintiffs expert medical witness, demonstrated that the defendant was aware of a risk to the plaintiff. That awareness triggered the duty to warn.

As we have discussed, the plaintiff in the present case has not demonstrated that the defendant was aware, either at the time of the procedure or later, of an increased risk to her. Such a showing was necessary to support her claim. See also Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 363 (plaintiff demonstrated that defendant physician was aware of risk that he failed to communicate to him because defendant physician expressed concern about plaintiffs medical condition eleven years after rendering treatment to him).

The plaintiffs reliance on Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981), is of no avail. In that case, our Supreme Court determined that the statute of limitations should be tolled because there was a continuous course of conduct stemming from the defendant’s continued prescription of medication for the plaintiff. Id., 392, 400. Similarly, in Blanchette v. Barrett, supra, 229 Conn. 280, our Supreme Court concluded that the statute of limitations should be tolled because the plaintiff had demonstrated that the defendant noticed an unusual condition during a breast examination. Our Supreme Court concluded that given the ongoing doctor-patient relationship that existed in that case, the defendant should have continued to monitor the condition and warned the plaintiff of the risks involved with the defendant’s finding. Although a party need not demonstrate a continuing course of treatment to demonstrate the existence of a continuing course of conduct, there is considerable “similarity and overlap” between those doctrines. Id., 276.

Given the lack of evidence to demonstrate that the defendant was aware of an increased risk that the procedure could fail, we conclude that he did not owe the plaintiff a continuing duty to warn. As our Supreme Court has stated, to expect a defendant physician to remedy a diagnosis “in the absence of proof that he subsequently learned that his diagnosis was incorrect” would render the repose part of the statute of limitations a nullity. Id., 284. Similarly, to expect further treatment or warnings “when there is no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy.” Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 529, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a revised complaint on June 21, 1999. By written requests filed September 1, 1999, and May 9, 2000, she requested leave to amend her revised complaint. The court did not act on those requests, and the record does not reflect that the defendant objected to them. Pursuant to Practice Book § 10-60 (a), the plaintiffs latest amended complaint of May 9, 2000, is the operative complaint.

       Tubal fulguration involves the destruction of tissue in the fallopian tubes by means of high frequency electric sparks. It is intended to prevent the passage of ova from the ovaries to the uterus and is used as a method of female sterilization.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       The plaintiffs second claim warrants only a brief analysis. She argues that the court improperly failed to accept certain supplemental evidence in support of her opposition to the defendant’s motion. It is within the court’s discretion whether to accept or decline such supplemental evidence. See Altfeter v. Naugatuck, 53 Conn. App. 791, 806, 732 A.2d 207 (1999). The plaintiff had several months in which to prepare to oppose the defendant’s motion before the hearing. At the close of the hearing, her attorney stated: “And I would be happy, Your Honor, to the extent Your Honor believes it necessary, to file a supplemental affidavit from my expert or to have him come up here and testify in an evidentiary hearing.” The court did not respond to that offer. We note that if the plaintiff desired to submit such supplemental evidence before the court, she should have done so or have requested a continuance to that end.
      We find no merit to the plaintiffs claim. The court is not an advocate and should not be placed in a position of making tactical decisions for the attorneys before it. The court did not request that the plaintiff submit any additional evidence, and we find no abuse of discretion in this regard.


author: SHEA, J.

text:
    CHARLES FERRATO ET AL. v. WEBSTER BANK
    (AC 20913)
    Mihalakos, Dranginis and Shea, Js.
    Argued September 11, 2001
    officially released January 15, 2002

      Linda N. Mayo, for the appellant (defendant).

      Stephen G. Silverberg, for the appellees (plaintiffs).
   Opinion

SHEA, J.

The defendant, Webster Bank, appeals from the judgment of the trial court awarding the plaintiffs, Charles Ferrato, then a Hartford County deputy sheriff, and Hartford Fire Insurance Company, $87,131.56 in damages because Webster Bank’s predecessor in interest, Eagle Federal Savings Bank (Eagle Bank), failed to comply with a bank execution served pursuant to General Statutes § 52-367a. On appeal, the defendant claims that the court improperly (1) concluded that funds erroneously credited to a banking customer’s account constituted a debt due the account holder by the bank and were subject to execution pursuant to § 52-367a, (2) concluded that Eagle Bank’s stop-payment order with respect to these funds was untimely because it occurred after the midnight deadline imposed by § 52-367a and (3) failed to render judgment in favor of the plaintiffs in the amount of $9901.88. We agree with the defendant and reverse in part the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. On June 25, 1997, Hartford Fire Insurance Company obtained a judgment for $59,308.60 against Par Painting, Inc., a Connecticut corporation and an account holder at Eagle Bank. On December 5, 1997, the court issued a bank execution against Par Painting, Inc., demanding $68,885.42, an amount that included postjudgment interest and the statutory fees allowed the serving officer. On January 13, 1998, Rotha Contracting Company, Inc., another customer of the bank, requested that the proceeds of a certificate of deposit that it owned be deposited into the Rotha Contracting Company, Inc., checking account. An Eagle Bank employee mistakenly caused the proceeds, amounting to $109,792.99, to be deposited into the Par Painting, Inc., account. Ferrato served the execution on Eagle Bank before noon on January 15,1998. The Par Painting, Inc., account showed a balance of $119,694.87 at the bank’s closing time on that date. On January 21, 1998, Eagle Bank issued and mailed to Ferrato a teller’s check for $68,885.42 in full payment of the execution. That same day, but subsequent to mailing its check, Eagle Bank discovered its accounting error. The bank corrected the error by debiting the Par Painting, Inc., account by $109,792.99 and crediting the same amount to the Rotha Contracting Company, Inc., account.

The next day, January 22, 1998, Eagle Bank stopped payment on the check and so informed Ferrato, who nevertheless deposited the check into his trustee account in March, 1998. The check was dishonored as a stopped payment item and was returned to Ferrato. It later became an exhibit at the trial of this case.

At trial, the plaintiffs claimed that the right of the bank to correct its error expired at midnight on January 16, 1998, pursuant to § 52-367a. The court agreed and rendered judgment against the defendant as follows:

“Amount of check on which payment was stopped: $68,885.42;
“Interest from 1/19/98 to 12/29/98 under General Statutes § 37-3a (10 percent times 344 days): $6492.21;
“12 percent interest re offer of judgment dated 12/ 30/98 through 3/31/00: $10,372.45;
“12 percent interest re offer of judgment dated 4/1/00 through 5/31/00 (61 days): $1381.48 [Total] $87,131.56.”

I

The defendant first claims that the court improperly (1) concluded that the $109,792.99 mistakenly deposited into the judgment debtor’s account constituted a debt due the judgment debtor by the defendant and (2) rendered judgment for the plaintiffs in the amount of $87,131.56. Specifically, the defendant claims that the court failed to recognize that § 52-367a conditions a bank’s obligation to pay the amount demanded by an execution on the existence of an indebtedness of the bank to the judgment debtor. We agree with the defendant and reverse the judgment of the trial court.

The threshold question before us is whether the entire nominal balance of the judgment debtor’s account constituted a debt due from the defendant to the judgment debtor and was subject to execution pursuant to § 52-367a. Our analysis of this issue is guided by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Citations omitted; internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 755-56, 674 A.2d 1313 (1996). “If the words of a statute are unambiguous, we assume that they express the legislature’s intent.” Stein v. Hillebrand, 240 Conn. 35, 40, 688 A.2d 1317 (1997).

Section 52-367a authorizes a judgment creditor to execute against any debts due from any banking institution to a judgment debtor that is not a natural person. This statute provides in relevant part that “[i]f any such banking institution upon which such execution is served and upon which such demand is made is indebted to the judgment debtor, it shall pay to such officer, in the manner and at the time hereinafter described, the amount of such indebtedness not exceeding the amount due on such execution, to be received and applied on such execution by such officer. . . .” General Statutes § 52-367a.

In our view, the plain language of § 52-367a expresses the legislature’s intent to condition a bank’s obligation to comply with a service of execution on the existence of a debt owed to the judgment debtor by the banking institution on which the execution is served. Thus, the bank’s obligation is not absolute, but rather it is limited by the amount of the bank’s indebtedness to the judgment debtor. This interpretation is in accord with our Supreme Court’s comments on a definitional subsection of the postjudgment procedures statutes. “Although [General Statutes] § 52-350a (16) defines ‘property’ broadly to encompass ‘any real or personal property in which the judgment debtor has an interest which he could assign or transfer, including . . . any present or future right or interest . . . [and] any debt, whether due or to become due,’ it does not specify what constitutes [a] . . . ‘debt.’ While it is reasonable to infer from this language the legislature’s intent to allow a judgment creditor to execute against all forms of a judgment debtor’s assets, it would be unreasonable to infer an intent to encompass property in which a judgment debtor lacks any cognizable interest whatsoever.” Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 349, 691 A.2d 1068 (1997).

The defendant asserts, and we agree, that the judgment debtor did not have any cognizable interest in the funds erroneously credited to its account. “Deposits . . . create the relation of debtor and creditor between the bank and the depositor.” Alexiou v. Bridgeport-People’s Savings Bank, 110 Conn. 397, 399, 148 A. 374 (1930). “[A] bank is indebted to its account holders for the amount of the funds that they have deposited . . . .” (Citations omitted; emphasis added.) Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985). A debt is “[t]hat which is due from one person to another, whether money, goods, or services; that which one person is bound to pay to another, or to perform for his benefit; thing owed; an obligation or liability . . . that of which payment is liable to be exacted. . . . Debt contemplates not only an obligation upon the debtor to pay, but a reciprocal right on the part of the creditor to enforce payment . . . .” (Citations omitted; internal quotation marks omitted.) Lenox Realty Co. v. Hackett, 122 Conn. 143, 146, 187 A. 895 (1936).

The requirements and obligations imposed by § 52-367a simply do not apply to any portion of a depositor’s account that does not represent a debt due from the bank to the depositor. In the present case, the defendant was indebted to Par Painting, Inc., only for $9901.88, the total amount of the judgment debtor’s deposits on the date of the execution. The $109,792.99 erroneously credited to its account was not a debt due the judgment debtor and was not subject to execution. The defendant, therefore, was not bound to pay this sum to the judgment debtor, and the judgment debtor had no right to enforce payment of that sum. Accordingly, § 52-367a does not authorize execution against funds erroneously credited to the judgment debtor’s account.

We conclude that the court improperly rendered judgment for the plaintiffs in the amount of $87,131.56 because this figure included the funds erroneously deposited in the account, which funds were not subject to execution under § 52-367a.

II

The defendant next challenges the court’s conclusion that Eagle Bank’s stop-payment order was untimely because it occurred after the midnight deadline imposed by § 52-367a. We conclude that the defendant’s action was timely with respect to that amount actually owed to a third party account holder and credited to the judgment debtor in error.

We determined in part I that § 52-367a does not authorize execution against funds that do not constitute a debt owed by the bank to the judgment debtor. Therefore, because the defendant lacked authority to issue to the plaintiffs funds that improperly were deposited in the judgment debtor’s account, the midnight deadline referenced in § 52-367a is inapplicable to the funds owed to Rotha Contracting Company, Inc. In the absence of any superseding deadline, a bank’s right to issue a stop-payment order drawn on its account at another bank is governed by General Statutes §§ 42a-4-303 and 42a-4-403. Pursuant to § 42a-4-303, stop-payment orders are timely if they are received by the payor bank within a reasonable time to allow the bank to act on the instruction before the bank has taken any action on the item as described in § 42a-4-303.

The defendant issued its check on January 21, 1998. The next day, January 22, 1998, the defendant, having discovered its accounting error, stopped payment on its check. The defendant notified Ferrato of this action that same day. Ferrato did not attempt to deposit the stopped payment item into his trustee account until March, 1998. Clearly, the payor bank had ample opportunity to act on the stop-payment order and in fact did so. The defendant’s action was therefore timely under § 42a-4-303.

Ill

The defendant’s final claim on appeal is that the court improperly failed to conclude that judgment should be rendered in favor of the plaintiffs in the amount of $9901.88, the sum that the plaintiffs should have received on the execution. We agree in part.

In addition to correcting the amount of the judgment in accordance with our conclusions in part I, the court must also determine whether the plaintiffs should be awarded interest, which the plaintiffs had requested in their prayer for relief, on the sum of $9901.88. General Statutes § 37-3a authorizes the award of “interest at the rate of ten per cent a year, and no more ... as damages for the detention of money after it becomes payable. . . .” The defendant does not dispute that the $9901.88 in the judgment debtor’s account at the time of execution constituted a debt due to the judgment debtor by the defendant. This sum, therefore, was subject to execution pursuant to § 52-367a and the defendant was obligated to turn over this sum to the plaintiffs pursuant to such execution. The defendant concedes that it failed to comply with its statutory obligation under § 52-367a with respect to these funds.

The defendant, therefore, may be hable for interest at a maximum rate of 10 percent per year on the wrongfully withheld money. “The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.” (Internal quotation marks omitted.) Bertozzi v. McCarthy, 164 Conn. 463, 466, 323 A.2d 553 (1973). Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a, we note that, in the context of the statute, “wrongful” is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so. Ballentine’s Law Dictionary (3d Ed. 1969). Nevertheless, “[t]he allowance of interest as an element of damages is . . . primarily an equitable determination and a matter lying within the discretion of the trial court.” Bertozzi v. McCarthy, supra, 467.

The judgment is reversed in part and the case is remanded with direction to render judgment for the plaintiffs in the amount of $9901.88 together with applicable costs and for further proceedings to determine whether the plaintiffs should be awarded interest on this sum pursuant to § 37-3a. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       By virtue of a merger, Webster Bank, as the surviving corporation, acquired all the liabilities of Eagle Bank and the separate existence of Eagle Bank ceased. See General Statutes § 33-820 (a).

       General Statutes § 52-367a provides in relevant part: “If any such banking institution upon which such execution is served and upon which such demand is made is indebted to the judgment debtor, it shall pay to such officer, in the manner and at the time hereinafter described, the amount of such indebtedness not exceeding the amount due on such execution, to be received and applied on such execution by such officer. Such banking institution shall act upon such execution according to section 42a-4-303 before its midnight deadline, as defined in section 42a-4-104. If such banking institution fails or refuses to pay over to such officer the amount of such debt, not exceeding the amount due on such execution, such banking institution shall be liable in an action therefor to the judgment creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied toward the payment of the amount due on such execution.”

       The term “midnight deadline,” is defined in General Statutes § 42a-4-104 (a) (10) as “midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later . . . .”

       That reduction in the Par Painting, Inc., account left a balance of $9901.88, which the defendant concedes Eagle Bank should have paid to Ferrato at the time the execution was served on that bank.

       General Statutes § 52-367aprovides in relevant part that “[s]uch banking institution shall act upon such execution according to section 42a-4-303 before its midnight deadline, as defined in section 42a-4-104. ..."

       General Statutes § 42a-4-303 (a) provides: “Any knowledge, notice or stop-payment order received by, legal process served upon, or set-off exercised by a payor bank comes too late to terminate, suspend, or modify the bank’s right or duty to pay an item or to charge its customer’s account for the item if the knowledge, notice, stop-payment order, or legal process is received or served and a reasonable time for the bank to act thereon expires or the set-off is exercised after the earliest of the following: (1) The bank accepts or certifies the item; (2) the bank pays the item in cash; (3) the bank settles for the item without having a right to revoke the settlement under statute, clearinghouse rule, or agreement; (4) the bank becomes accountable for the amount of the item under section 42a-4-302 dealing with the payor bank’s responsibility for late return of items; or (5) with respect to checks, a cutoff hour no earlier than one hour after the opening of the next banking day after the banking day on which the bank received the check and no later than the close of that next banking day or, if no cutoff hour is fixed, the close of the next banking day after the banking day on which the bank received the check.”


author: HEALEY, J.

text:
    SERGE DOYEN ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF ESSEX ET AL.
    (AC 20875)
    Lavery, C. J., and Landau and Healey, Js.
    Argued September 13, 2001
    officially released January 15, 2002

      Alan J. Rome, with whom was Steven L. Katz, for the appellants (defendant Salvatore Sapia et al.).

      John S. Bennet, for the appellee (plaintiff Virginia Williams).
   Opinion

HEALEY, J.

The defendants Salvatore Sapia and Marie Sapia (Sapias) appeal from the judgment of the trial court sustaining the appeal of the plaintiff Virginia Williams from the decision by the defendant zoning board of appeals of the town of Essex (board), which upheld the zoning enforcement officer’s granting of the Sapias’ application for a permit for residential renovations. On appeal, the Sapias claim that in reversing the board’s decision, the court improperly (1) interpreted the Essex zoning regulations as prohibiting a property owner from vertically expanding into the airspace over an existing side setback nonconformity, (2) substituted its judgment for that of the board, (3) applied the Essex zoning regulations retroactively, which illegally invalidated an existing nonconforming improvement, and (4) deprived the Sapias of a constitutionally protected vested property right. We agree with the Sapias on the first two claims, which we find to be dispositive, and, accordingly, we reverse the judgment of the trial court without addressing the remaining claims.

The following facts and procedural history are relevant to our resolution of the Sapias’ appeal. On or about March 4, 1998, the Sapias filed an application for a zoning permit for renovations with respect to their residence at 1 Willow Point Road in Essex. The Sapias’ application requested permission to construct an addition that contemplated a vertical expansion that would not exceed the “existing structural footprint” of their house. The proposed addition would extend five to six feet over, but not beyond, the existing deck on the side of the house. The house, which was constructed prior to the adoption of the Essex zoning regulations in 1966, is a legally nonconforming structure in that a portion of the foundation and the deck attached to the same side of the house extend into the twenty-five foot side setback area required by the regulations.

On the same day that the Sapias filed their application, the Essex zoning enforcement officer, Larry Gilliam, issued the requested permit. Thereafter, the plaintiff and others, alleging that they were abutting property owners, appealed from the zoning officer’s decision to the board. They claimed that the proposed addition authorized by the permit violated a number of the town’s zoning regulations dealing with setbacks, nonconforming uses and “other matters.”

On April 21 and May 5, 1998, the board held public hearings on the appeal during which counsel for both sides presented evidence. Gilliam also made a presentation and answered questions from the board and the parties’ counsel. Gilliam, who has been the town’s zoning officer since 1982, testified that when calculating coverage and setbacks, decks are treated as part of the structure and that he has “always issued permits for people who want to go up over those existing structures as long as they maintain the height requirement.” He maintained that he could “come up with probably twenty-five or thirty examples of permits that [he had] issued in the past eighteen to twenty years in this kind of situation.” Specifically as to the Sapias’ property, Gilliam stated: “[T]his property . . . was an existing property, the building exists on the property and as far as I’m concerned, they’re not extending, they’re not expanding. . . .

“I don’t buy the argument that it’s an extension or expansion of a characteristic because the characteristics exist. I understand that this building exists in the setback. I’m not arguing that it doesn’t. I’m just saying that if you have a characteristic that exists, that you should be able to build up over that characteristic as long as you don’t go over the height. . . .

“[A]s far as the permit goes, as far as this application goes, there is no extension, there’s no expansion beyond the existing footprint of the building.”

Gilliam was then asked to comment on and give his interpretation of § 50D of the Essex zoning regulations concerning the extension or expansion of nonconforming uses and improvements. As to the first paragraph of § 50D, Gilliam stated: “My interpretation of that first paragraph is that the key [to] this whole paragraph is except in conformity with these regulations. As long as people intended to comply with characteristics established for the district. In this case, it happens to be [the] thirty-five foot height limitation. And they do not expand outward to take up more land area that they’re in compliance with the requirements of the regulation.”

As to the second paragraph of § 50D, Gilliam stated: “This [paragraph] speaks for itself. . . . There’s not a question of use here as far as I’m concerned. 5It’s a residential use in a residential district so we aren’t expanding nonconforming uses. . . . We aren’t changing the characteristics of the land at all. We aren’t changing the shape or size of the land or anything. The improvement shall be . . . expanded. We are not enlarging, extending or expanding the characteristics of the building except in compliance with the [regulations].” Gilliam also pointed out that the permit he issued to the Sapias was “issued specifically to not expand [or] extend . . . and it had to stay within the existing footprint of the structure.”

On May 5, 1998, after considering the evidence presented before it, the board voted unanimously to uphold Gilliam’s decision to issue the permit. In rendering its decision, the board stated, inter alia, that “Gilliam’s interpretation of the regulations is consistent with the interpretation of the regulations by this board, and by the present and previous zoning enforcement agent, that they have been applied consistently over a number of years in this town and that the interpretation does not constitute an expansion of a nonconformity and does not violate the nonconformity sections of the regulations as they are written. This speaks to sections a, b, d, e, f, and g of the appeal.”

On May 20, 1998, the plaintiff appealed to the trial court from the board’s decision. On March 7, 2000, the court sustained the plaintiffs appeal, reversing the decision of the board. Thereafter, the Sapias filed a petition for certification to this court, which was granted on May 24, 2000. On June 8, 2000, the Sapias filed this appeal.

The Sapias first claim that in reversing the board’s decision, the court improperly interpreted the Essex zoning regulations as prohibiting a property owner from vertically expanding into the airspace over an existing side setback nonconformity. We agree with the Sapias.

As a preliminary matter, we set forth the standard of review. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons .... We, in turn, review the action of the trial court.” (Citations omitted; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991).

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it.” New London v. Zoning Board of Appeals, 29 Conn. App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993). “Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [board].” (Citations omitted; internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998). If a board’s time-tested inteipretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts. Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 121, 742 A.2d 1257 (2000).

In the present case, the principal issue on appeal is the inteipretation of certain provisions of the Essex zoning regulations. Because the trial court in interpreting the regulations has made conclusions of law, our review is plenary. Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 139, 734 A.2d 592, cert. denied, 250 Conn. 930, 738 A.2d 656 (1999); Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 610, 782 A.2d 1285, cert. granted on other grounds, 258 Conn. 938, 786 A.2d 425 (2001). “[W]e [therefore] must decide whether the conclusions are legally and logically correct and supported by the facts in the record.” Fleet National Bank v. Zoning Board of Appeals, supra, 139.

In discussing this issue, we note that “[a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances.” (Internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 335, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). “A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative. enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” (Citations omitted; internal quotation marks omitted.) Id., 335-36. “Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, supra, 217 Conn. 441.

The preamble to the Essex zoning regulations provides in relevant part that “ [i]t is a fundamental principle of zoning law that nonconformities are not to be expanded and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will peimit. This principle is declared to be the intent of these regulations.” Essex Zoning Regs., § 10B. While § 10B sets forth the general policy that nonconformities are not favored in zoning law, this section must be read in the light of § 50D, which specifically provides a window of tolerance for the expansion of nonconforming improvements like the Sapias’ deck. Section 50D provides in relevant part that “no improvement having a nonconforming characteristic, shall be enlarged, extended, or expanded except in conformity with these Regulations. ...” (Emphasis added.) This portion of § 50D stands in shaip contrast to the remainder of the section which provides in relevant part that “[n]o nonconforming . . . characteristic of any . . . improvement shall be enlarged, extended, or expanded. . . .” A fair interpretation of § 50D thus expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations. Any other reading would defeat the common sense approach that must be used in construing regulations. The relevant question, therefore, becomes whether the Sapias’ proposed addition constitutes an expansion of a nonconforming characteristic of an improvement under the regulations.

In rendering its decision, the court explicitly rejected the board’s interpretation of the regulations that the vertical expansion of the portion of a structure that is nonconforming as to a setback does not constitute, in and of itself, an expansion of a nonconforming characteristic of the structure. In crafting its own interpretation, the court focused on § 401.1 of the Essex zoning regulations, which provides in relevant part that “required setbacks shall be open and unobstructed to the sky . . . .” This section essentially adds a vertical component to the setback, making the required setback area three dimensional. Applying § 401.1, the court reasoned that “although the addition did not increase the horizontal dimension of the setback nonconformity, it expanded the nonconformity” by intruding into the setback zone, rendering it no longer “ ‘open and unobstructed to the sky’ in violation of § 401.1.” The court concluded that “[s]uch expansion into the setback zone was therefore in derogation of the provisions of § 50D that mandate that ‘[n]o nonconforming . . . characteristic of any . . . improvement shall be enlarged, extended, or expanded.’ ” The court’s interpretation of the regulations misses the mark in a number of ways.

The court improperly determined that § 401.1 was applicable to the facts of this case. In rejecting the defendants’ argument that § 401.1 does not apply when the setback zone is already “compromised” at the ground level, the court stated that the defendants’ interpretation with respect to the applicability of § 401.1 was “plausible,” but incorrect in light of public policy, which disfavors the extension of nonconformities.

In its explication, the court overlooks the fact that the proposed renovation was entirely within the footprint of the Sapias’ residence as it existed in 1966, when the regulations were first enacted. The preexisting footprint, which includes the deck, creates its own legal nonconforming setback. Pursuant to § 20A of the Essex zoning regulations, a setback is defined as “the required open space between any improvement and a lot line . . . measured perpendicularly from each lot line . . . .” (Emphasis added.) Section 401.1 provides that “required setbacks shall be open and unobstructed to the sky . . . .” (Emphasis added.) The “shall be open and unobstructed to the sky” language thus applies only to “required setbacks.” In the present case, pursuant to § 20A, the required setback is the open space between the Sapias’ nonconforming footprint and the lot line. It is this space that must be “open and unobstructed to the sky.” In no way does the plain language of the regulations require that the airspace above the legal nonconforming footprint be “open and unobstructed to the sky.” Therefore, the court improperly concluded that § 401.1 is applicable to the airspace above the Sapias’ legally nonconforming footprint.

Furthermore, in basing its rejection of the defendants’ “plausible” position with respect to the applicability of § 401.1 on the general policy that the law disfavors the extension of nonconformities, the court wholly disregards the import of § 50D, which expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations. The exception in § 50D may be narrow, but it is nevertheless significant in this case and it cannot be disregarded. “Where there are two provisions in a [regulation], one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Internal quotation marks omitted.) Gaynor v. Union Trust Co., 216 Conn. 458, 476-77, 582 A.2d 190 (1990). Therefore, when the regulations are considered in the light of § 50D, there clearly exists a window of tolerance for the expansion of nonconforming improvements like the Sapias’ deck. Accordingly, the court’s total reliance on the general policy that the law disfavors the extension of nonconformities in rejecting the defendants’ “plausible” position with respect to the applicability of § 401.1 is misplaced.

The court also improperly substituted its own judgment for that of the board in rejecting the board’s implicit conclusion that § 401.1 does not apply under the circumstances of this case. “Generally, it is the function of a zoning board or commission to decide . . . whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.” (Internal quotation marks omitted.) Spero v. Zoning Board of Appeals, supra, 217 Conn. 440. The court justifies its lack of deference to the board by concluding that the board did not even consider § 401.1 in reaching its decision. We disagree with the court’s conclusion.

“There is a presumption that a public officer properly performs his duty unless the contrary appears.” Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985). We therefore can assume that when the board states, as it did, that in concurring with Gilliam’s interpretation of the regulations, which is consistent with its own interpretation over the years, that such an interpretation was made only after careful consideration of all the regulations, including § 401.1. We cannot accept the court’s view that the lack of a specific reference to § 401.1 in the board’s decision prohibits it from giving any deference to the board’s position on this issue.

Furthermore, in reviewing the record, we find that there is no basis for the court’s finding that the board did not consider the applicability of § 401.1 in reaching its decision. At the April 21, 1998 hearing before the board, the plaintiffs counsel discussed in detail the plaintiffs position with respect to the applicability of § 401.1. Gilliam, in his presentation to the board, explicitly rejected the plaintiffs argument. The board agreed with Gilliam, stating that there was not an expansion of a nonconformity and there was no violation of the nonconformity sections of the regulations. In rendering its decision, the board specifically rejected, inter alia, part (b) of the plaintiffs appeal, in which the plaintiff claimed that the zoning permit violated § 401.1 of the regulations. In the argument section of the appeal, the plaintiff stated that § 401.1 provides that “setbacks shall be open and unobstructed to the sky” and that this language “demonstrates the clear policy of the town of Essex to set a bulk standard for structures and not to permit the expansion of the height over the existing ‘footprint’ of a building if that footprint does not conform to zoning requirements.” We conclude that, in expressly rejecting part (b) of the plaintiffs appeal, the board considered the applicability of § 401.1 in reaching its decision and, therefore, the court’s contrary conclusion is incorrect.

Finally, the court, in determining whether the board properly interpreted the regulations, improperly failed to give any weight to the board’s consistent interpretation of the regulations over the years. “A local board ... is in the most advantageous position to interpret its own regulations and apply them to the situations before it.” New London v. Zoning Board of Appeals, supra, 29 Conn. App. 405. If a board’s time-tested interpretation of a regulation is reasonable, that interpretation should be accorded great weight by the courts. Office of Consumer Counsel v. Dept. of Public Utility Control, supra, 252 Conn. 121.

Again, the court justifies its lack of deference to the board by concluding that “there is no evidence that the board has taken the import of § 401.1 into account in its practice.” In light of our previous discussion, we conclude that it was improper for the court not to give some deference to the board. Moreover, because the board’s interpretation was “plausible,” the court should have accorded it “great weight.” See id. The board’s consistent interpretation of the regulations also supports the conclusion that the board’s decision was not arbitrary.

We conclude that the court’s conclusions of law are not legally and logically correct and that they are not supported by the facts in the record. The board’s decision was not illegal, arbitrary or an abuse of its discretion. The decision was reasonably supported by the record and effectuates the intent of the Essex zoning regulations. Accordingly, the court improperly reversed the decision of the board.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment affirming the decision of the board.

In this opinion the other judges concurred.

       The named plaintiff, Serge Doyen, is no longer a party to this appeal. We, therefore, refer in this opinion to the plaintiff Virginia Williams as the plaintiff.

       Section 50D of the Essex zoning regulations provides: “No use of any land or improvement having a nonconforming characteristic, and no improvement having a nonconforming characteristic, shall be enlarged, extended, or expanded except in conformity with these Regulations.
      “No nonconforming use or characteristic of any land or improvement shall be enlarged, extended, or expanded.
      “Completing the enclosure of apreviously roofed porch, without changing its size or shape, shall not be considered an extension or expansion of a nonconforming use or improvement.”

       The proposed thirty-two foot height of the Sapias’ addition does not violate the thirty-five foot height limitation set forth in § 40J of the Essex zoning regulations.

       We note that § 20A of the Essex zoning regulations defines “nonconforming use” as follows: “Any use of land or improvement which is not a use permitted by these Regulations but which was legally and actually existing at the effective date of these Regulations or any pertinent amendment thereto . . . .”

       As to the third paragraph of § 50D, Gilliam stated: “What that means is that if you have a deck or a porch that is existing within the setback area [and] it has a roof over it, [y]ou can enclose that space without it being considered an extension or expansion of a characteristic of the building.” This paragraph is not applicable to the Sapias’ permit because their deck was not a “previously roofed porch.” The court, however, states in footnote 4 of its decision that this paragraph is notable because “[t]he absence of a comparable regulation concerning additions to houses suggests that the intent of the regulations was to make such additions fully subject to the general prohibition on expansion of nonconformities.” As we will discuss in this opinion, the court’s position wholly disregards the import of the first paragraph of § 50D, which specifically provides a window of tolerance for the expansion of nonconforming improvements. It also is contrary to the board’s consistent interpretation of the zoning regulations.

       These portions of the plaintiffs appeal to the board specifically referred to the following sections of the zoning regulations: (a) § 10B, purposes: nonconformity; (b) § 401.1, setbacks: general; (c) § 40J, height limitation; (d) § 50B, nonconforming uses and improvements (change to conformity); (e) § 50C.2, nonconforming uses and improvements (change to nonconformity); (f) § 50D, nonconforming uses and improvements (extension or expansion); and (g) § 60B, village residential required characteristics (setbacks).

       In an administrative appeal, to have standing, plaintiffs are required to prove that they have been aggrieved by the agency’s decision. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). On the basis of undisputed evidence that the plaintiff was an abutting property owner, the trial court properly found that the plaintiff was aggrieved by the board’s decision. See General Statutes § 8-8 (1); Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).

       Although the board has not filed an appeal, it has filed notice that it joins in and supports the Sapias’ brief.

       Wo focus on the term “expansion” in our discussion because the court focused on this term in its decision.

       Pursuant to § 20A of the Essex zoning regulations, a nonconforming improvement or characteristic is defined as “[a]ny improvement or characteristic of any land or improvement which does not conform to these Regulations but which was legally and actually existing at the effective date of these Regulations . . . .”
      Section 20A of the Essex zoning regulations defines a deck in relevant part as “[a] structural improvement elevated above the surface of the ground, not having a roof, and attached to a building. . . .” (Emphasis added.)

       There is no dispute that the proposed addition is otherwise in conformity with the regulations. See footnote 4.

       The court’s decision indicates that “[§] 401.2 addresses detached accessory buildings and is not relevant to this case.” We agree.

       There is no dispute that the proposed addition was wholly within the existing structural footprint. In her brief, the plaintiff argues that in Bloom, v. Zoning Board of Appeals, 233 Conn. 198, 658 A.2d 559 (1995), our Supreme Court expressly rejected the significance of considering whether the nonconformity lies within the existing structural footprint in nonconformity cases. We do not read Bloom as adopting that view.
      The dispositive issue in Bloom was “whether the principles of equitable estoppel entitle the owners of a legally nonconforming building to a variance on the ground of hardship when, in reliance on an erroneously issued building permit, the owners have expanded and altered the building within the nonconforming areas.” Id., 199. The Supreme Court concluded that the property owners’ reliance on an erroneous building permit did not constitute such a hardship. See id.
      In citing Bloom, the plaintiff does not refer us to any language in support of her claim that the Supreme Court rejected the “footprint theory.”

       The minutes of the May 5, 1998 special meeting of the board indicate that the board’s chairman opined that “when the regulations were brought into existence in 1966, this building already existed, including the deck, which means this has a nonconforming right which is different tha[n] the nonconformity that is allowed by variance. The fact that the deck existed at the time zoning was enacted gives it a different right than one granted by variance later on.”

       The court stated: “In view of this policy, this court should not favor an interpretation of the regulations that would, at the least, not reduce a nonconformity and, at the most, expand a nonconformity.”

       The court stated that “there is no evidence that the board has taken the import of § 401.1 into account .... Thus there is no specific interpretation of § 401.1 to which this court should defer.”

       The plaintiffs counsel stated in relevant part: “Now, I’ve submitted a long statement which I know you probably have read and certainly can read, but I would highlight a couple of issues. [Section] 10B of your regulation talks about nonconformities and they are as they say anathemas. They are not to be encouraged. They are not to be enhanced. They are not to be increased. . . . And that’s what we are talking about doing when we talk about a plan that’s going to take that two story house and do this to it. Expand the coverage and so forth. I would highlight for you although I think this is simply an example of the expansion of the nonconformities of the setbacks of § 401, and, in particular, under § 401.1, the general section, it says except as otherwise prescribed in § 401.2, required setbacks shall be open and unobstructed to the sky. If you’re going to add this covered portico, porch, whatever we call it, on the end of this property and extend the roof line, extend the side dormer out even further into the setbacks than the initial, the original structure now extends, you’re blocking, obstructing some of that area between the ground and the sky. Now, I’ve talked to Larry [Gilliam] about this. We went over it at some length and he said well there’s already a deck out there and I’m sure he’ll correct me if I’m misrepresenting anything that he says and that it has been his practice, if you’ve got some coverage even if it’s a deck like that you can go up as high as you want to within the height restriction. I’m here to tell you that you can’t do that. That your regulations don’t permit it, and the state statutes don’t permit it. . . .
      “I submit to you that whatever else can be said about this application is it has to be said that the nonconformities are being expanded into the side line coverage and otherwise, and the zoning permit that was issued in this case isn’t permissible. I’ll take it a step further than that and say to you that any expansion beyond this box of the four walls and the roof represented by the original structure is inappropriate.”

       Gilliam’s presentation before the board has been set out previously in this opinion, and, therefore, we will not restate it here.

       According to Merriam-Webster’s Collegiate Dictionary (10th Ed. 1998), plausible means, among other things, reasonable.

       In so holding, we note that the cases cited by the plaintiff, Gians v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. 57306 (March 19, 1991), Settipane v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. 45435 (February 20, 1987), and Bloom v. Zoning Board of Appeals, supra, 233 Conn. 198, are readily distinguishable from the present case.
      In the absence of precisely applicable appellate authority on the underlying issue in this case, we have carefully reviewed both the text and implications of the three proffered decisions. We conclude that each decision is analytically inapposite and unpersuasive in the present case because those decisions either address zoning regulations that are markedly distinct from those in effect in Essex, or provide only summary attention to the zoning regulations, without express discussion of the manner in which specific provisions could or should be construed as establishing a vertical component to the setback requirements. In addition, all three cases, unlike the case before us, involve an application for a variance. We also note that the factual basis of the Settipane and Bloom decisions are vague and ambiguous with respect to the issue before us.