text:
    Joshua Gold et al. v. Connecticut Home Therapeutics, Inc.
    (13107)
    Dupont, C. J., and Lavery and Spear, Js.

      Submitted on briefs February 16
    decision released May 16, 1995

      Nancy J. Vavra filed a brief for the appellants (plaintiffs).

      Kenneth A. Votre filed a brief for the appellee (defendant).
   Lavery, J.

The plaintiffs appeal from the trial court’s summary judgment for the defendant. The plaintiffs claim that the trial court improperly rendered summary judgment for the defendant because the plaintiffs’ counteraffidavit and exhibits show that there are genuine issues of material fact, which entitle the plaintiffs to a trial. We agree and reverse the judgment of the trial court.

The following facts are necessary to a disposition of this appeal. This case involves a commercial written lease agreement between the plaintiffs as landlord and the defendant as tenant. The term of the lease, as set forth in the language of paragraph two, is three years. The plaintiffs claim that this is a scrivener’s error. In paragraph four of the lease the parties agreed that the rental payments would be paid over the course of a four year period, “ending September 30, 1993.” The term of the lease as intended and agreed to by the parties is the essential issue in dispute.

The defendant moved for summary judgment. The motion relied on the language in paragraph two describing the lease term, on the fact that the plaintiffs’ counsel prepared the lease and on an affidavit submitted by the defendant.

The plaintiffs objected to the motion for summary judgment. In addition to the written lease agreement, the plaintiffs provided the trial court with supporting documentation including the plaintiffs’ counter-affidavit, a record of payments for improvements made to the premises pursuant to the lease agreement, which was scheduled in installments over the course of the lease term for four years, an amendment to the lease tendered to the defendant which described the existing lease agreement as providing for the four year lease term, and the defendant’s request for an amendment dated August 1,1990, to which the amendment to lease responded. The trial court granted the defendant’s motion for summary judgment on November 15, 1993.

Summary judgment may be granted only in actions in which the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact. Practice Book § 384; Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990); Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The burden of demonstrating the propriety of summary adjudication is always on the moving party. Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). To satisfy his burden, the movant must make a showing that it is clear what the truth is and that it excludes any real doubt as to the existence of any genuine issue of material fact. See Fogarty v. Rashaw, 193 Conn. 442, 445, 476 A.2d 582 (1984), quoting Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). The Supreme Court has held that a material issue of fact is one that “will make a difference in the result of the case.” Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts presented in a motion for summary judgment must be viewed in the light most favorable to the party opposing the motion. Mingachos v. CBS, Inc., supra, 91.

The plaintiffs contend that the facts presented to the trial court in the motion for summary judgment, viewed in the light most favorable to the plaintiffs, do not support the trial court’s finding. In their complaint, the plaintiffs alleged that the lease executed with the defendant provided for a term of four years and that the language in paragraph two, providing a three year term, was due to a scrivener’s error. In paragraph four of the lease, the parties agreed that the rental payments would be paid over the course of a four year period, “ending September 30,1993.” The plaintiffs, therefore, claim that genuine issues of material fact exist, which entitle them to a trial in this matter.

The trial judge, in his decision to render summary judgment, relied on the language in paragraph two stipulating the lease term. This foreclosed the plaintiff the opportunity of offering testimony and evidence that the language in paragraph two was due to the scrivener’s error and did not represent the intent and agreement of the parties. The intent of the parties at the time of the execution of the lease agreement is an issue of fact that, when determined, will certainly make a difference in the outcome of this case.

As the plaintiffs were entitled to an opportunity to present the evidence at the trial, they should not have been summarily precluded therefrom.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Iraida Feliciano v. Juan Feliciano
    (12933)
    O'Connell, Foti and Lavery, Js.
    Argued December 5, 1994
    decision released May 16, 1995

      Rochelle Homelson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellant (state).

      Margaret P. Levy, for the appellee (defendant).
   O’Connell, J.

The parties’ marriage was dissolved on January 6, 1983. Because financial assistance was being furnished on behalf of a minor child under the aid to families with dependent children program (AFDC), the attorney general (hereafter state) was a party to the proceedings. General Statutes § 46b-55. Custody of the child was awarded to the plaintiff, with reasonable rights of visitation for the defendant. The defendant was ordered to pay $1 per year alimony, $15 per week child support and $5 per week on an arrearage owed to the state.

On January 14,1993, the state moved to modify the support order, arguing that the original award substantially deviated from the Connecticut child support guidelines. On the basis of the guidelines, the state calculated that the defendant should pay $86 per week child support and $5 per week on a $60 arrearage. Family support magistrate Alan E. Steele granted the state’s motion, but ordered the defendant to pay weekly support in the amount of $56.43, which was based on a pro rata share of the family’s AFDC benefits. The magistrate acknowledged that the award deviated from the guidelines, but found that any award that exceeded the pro rata share of AFDC would violate the defendant’s fifth and fourteenth amendment rights because it would force him to pay support not only for his own child but also for the plaintiff’s other two children, for whom he had no financial responsibility.

The trial court, Santos, J., approved the magistrate’s orders and entered them as orders of the court without further hearing.

The state appealed and claims that (1) the trial court improperly approved the magistrate’s child support modification, which limited the father’s obligation to the prorated amount of AFDC benefits paid for the minor child of the parties, (2) the trial court improperly approved the magistrate’s determination that the modification requested by the state would violate the defendant’s constitutional rights, and (3) the trial court improperly approved the magistrate’s child support order, which violated the child’s constitutional rights. We reverse the judgment of the trial court.

I

The state first argues that the trial court abused its discretion because its modified support order substantially deviated from the child support guidelines. The state contends that the trial court improperly limited the defendant’s obligation to the pro rata amount of AFDC benefits paid for the child of the parties.

The support guidelines create a rebuttable presumption that the amount of support calculated thereunder is the appropriate amount of support to be ordered by the court. General Statutes § 46b-215b. This presumption can be rebutted only if the trial court finds, on the record, that it would be inequitable or inappropriate to apply the guidelines because of evidence satisfying one of the guidelines deviation criteria. General Statutes §§ 46b-215a and 46b-215b; Connecticut Child Support and Arrearage Guidelines (1994) § 46b-215a-3, p. 12; Favrow v. Vargas, 222 Conn. 699, 715, 610 A.2d 1267 (1992); Castro v. Castro, 31 Conn. App. 761, 766, 627 A.2d 452 (1993).

AFDC assistance is not one of the enumerated criteria for deviation from the presumptive support order resulting from application of the guidelines. The exact opposite is true. The guidelines expressly provide that public assistance grants are not to be included in determination of gross income. To allow public assistance benefits paid to the family unit to be a deviation criterion would create “a back door method to consider something the legislature believed should not be considered.” Sanders v. Lott, 428 Pa. Super. 119, 630 A.2d 438 (1993).

The defendant argues that the receipt of AFDC benefits qualifies under the final criterion, “Other equitable factors.” We are not persuaded. The guidelines must be read as a whole. Where one part of the guidelines provides that public assistance benefits are not to be considered in establishing gross income, it would be manifestly inconsistent to allow those same benefits to be used as a deviation criterion under the catchall exception of other equitable factors. See Favrow v. Vargas, supra, 222 Conn. 715. We conclude that deviation from the guidelines solely because of the child’s receipt of a prorated share of an AFDC grant is precluded by the guidelines and was an abuse of the trial court’s discretion.

II

The state next claims that the trial court improperly-held that requiring the defendant to pay support in accordance with his ability would violate his constitutional right to due process and equal protection. The trial court reasoned that the violation resulted from the application of the defendant’s payments to the state as reimbursement for AFDC payments for two children whom the defendant has no duty to support.

We commence our analysis by noting that the genesis of this issue is the federal statutes governing the AFDC program. “The AFDC program is based on a scheme of cooperative federalism. . . . Established by Title IV of the Social Security Act of 1935, 49 Stat. 627, to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them . . . the federal program reimburses each State which chooses to participate with a percentage of the funds it expends. ... In return, the State must administer its assistance program pursuant to a state plan that conforms to applicable federal statutes and regulations.” (Citations omitted; internal quotation marks omitted.) Bowen v. Gilliard, 483 U.S. 587, 589 n.1, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987).

Since 1975,42 U.S.C. § 602 (a) (26) (A) has required custodial parents, as a condition precedent to receipt of benefits on behalf of the “family filing unit” to assign to the state any right to receive child support payments for any member of the family unit. “As part of its major effort to reduce the federal deficit through the Deficit Reduction Act of 1984, 98 Stat. 494, Congress amended the statute authorizing Federal Aid to Families with Dependent Children (AFDC) to require that a family’s eligibility for benefits must take into account, with certain exceptions, the income of all parents, brothers, and sisters living in the same home.” Bowen v. Gilliard, supra, 483 U.S. 589. Where the family filing unit includes a mother whose children have different fathers, and support is collected by the state from the father of only one of the children, the federal statutes and regulations require that the payment be used to reduce the outstanding reimbursed AFDC balance of the entire family. 42 U.S.C. §§ 602 (a) (8) (A) (vi) and 657 (b) (1); 45 C.F.R. § 302.51. This is the result that the trial court found to be unconstitutional.

This is not a case of first impression. The United States Supreme Court considered the matter in Bowen v. Gilliard, supra, 483 U.S. 587, and concluded that fifth amendment due process and equal protection principles are not violated by the requirement that a family applying to receive AFDC benefits include within the family unit a child for whom a noncustodial parent is making support payments. Bowen recognized that prior to the federal Deficit Reduction Act there was no requirement that all children in the family be included in the AFDC filing unit and that a family might choose to exclude a child who was receiving support payments if the payments would reduce the family’s benefit by an amount greater than the amount payable on behalf of the child. Id., 593. Bowen quoted from the remarks of the secretary of health, education and welfare made at the passage of the Deficit Reduction Act that “ ‘[t]his change will end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole.’ ” Id., 593-94.

“Because the 1984 amendment forced families to include in the filing unit children for whom support payments were being received, the practical effect was that many families’ total income was reduced. The burden of the change was mitigated somewhat by a separate amendment providing that the first $50 of child support collected by the State must be remitted to the family and not counted as income for the purpose of determining its benefit level. See 42 U.S.C. §§ 602 (a) (8) (A) (vi), 657 (b) (1) (1982 ed., Supp. III). Thus the net effect of the 1984 amendments . . . would include three changes: (1) the addition of the child receiving support would enlarge the filing unit and entitle a family to a somewhat larger benefit; (2) child support would be treated as family income and would be assigned to the State, thereby reducing the AFDC benefits by that amount; and (3) the reduction would be offset by $50 if that amount was collected from an absent parent. In sum, if the assigned support exceeded $50 plus the difference in the benefit level caused by adding the child or children receiving support, the family would suffer; if less than $50 and the difference in the benefit level was collected as support, it would not.” Id., 594.

The Supreme Court also considered whether the effect of the Deficit Reduction Act was within the judicial function. “Under our structure of government ... it is the function of Congress — not the courts— to determine whether the savings realized, and presumably used for other critical governmental functions, are significant enough to justify the costs to the individuals affected by such reductions. The Fifth Amendment gives the federal courts no power to impose upon [Congress] their views of what constitutes wise economic or social policy, by telling it how to reconcile the demands of . . . needy citizens with the finite resources available to meet those demands. . . . Unless the Legislative Branch’s decision’s run afoul of some constitutional edict, any inequities created by such decisions must be remedied by the democratic processes. The District Court believed that the amendment at issue did conflict with both the Due Process Clause and the Takings Clause of the Fifth Amendment. We consider these arguments in turn, and reject them.” (Citations omitted; internal quotation marks omitted.) Id., 596-97.

The defendant argues that the Bowen majority failed to address the impact of the federal statutes and regulations on the noncustodial father. Although the legal challenge in Bowen was brought on behalf of indigent children, we are not persuaded that the strong language of the Bowen majority would permit a different result even if noncustodial fathers had been parties to the action. Addition of a noncustodial father as a party would not change the position of the Bowen court that the economic, social and philosophical problems involved in the public assistance system are not the business of the court and that it is up to the legislative branch to address these issues. See also Sanders v. Lott, supra, 428 Pa. Super 129.

We are aware that one state Supreme Court has held to the contrary. Humphrey v. Woods, 583 N.E.2d 133 (Ind. 1991). This case is inapposite, however, because it did not concern constitutional issues. The state of the law involving constitutional issues implicated in construction of the federal requirements and their impact on the application of the child support guidelines is as set forth in Bowen v. Gilliard, supra, 483 U.S. 587, as followed by Sanders v. Lott, supra, 428 Pa. Super 119. The trial court incorrectly held that the entry of a child support order in accordance with the guidelines would have violated the defendant’s constitutional rights.

Ill

Finally, the state contends that the magistrate’s order violated the minor child’s equal protection rights because it should have ordered support equal to the amount of support that would be paid on behalf of a child who is not a recipient of public assistance. Because the first two issues require a remand to the trial court, we do not reach this issue.

IV

As an additional ground of affirmance, the defendant argues that if the state’s position is accepted, the defendant will be denied his rights under article first, § 20, of the Connecticut constitution. This claim was not raised at trial. We are not required to consider a claim that was not distinctly raised at trial. The defendant argues that this court should consider it under the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant argues that this court should take judicial notice that fathers are the payers in child support orders for AFDC families more frequently than are mothers. This “fact” is an indispensable foundation for the defendant’s argument. The record does not include evidence concerning this essential point.

The defendant furnishes no authority, nor are we aware of any, that would allow us to take judicial notice of this “fact.” We conclude that the defendant’s claim fails the first Golding prong because the record is not adequate for review.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 46b-55 (a) provides: “The attorney general shall be and remain a party to any action for dissolution of marriage, legal separation or annulment, and to any proceedings after judgment in such action, if any party to the action, or any child of any party, is receiving or has received aid or care from the state. The attorney general may also be a party to such action for the purpose of establishing, enforcing or modifying an order for support or alimony if any party to the action is receiving support enforcement services pursuant to Title IV-D of the Social Security Act.”

       Conn, const., art. 1, § 20, as amended by Conn. Const, amend. V and XXI, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.” The defendant does not claim plain error.

       Under the Golding guidelines, a defendant can assert a constitutional claim, not preserved at trial, only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.


author: Lavery, J.

text:
    Lurie and Associates, Inc. v. Tomik Corporation et al.
    (13211)
    Lavery, Heiman and Schaller, Js.
    Submitted on briefs March 17
    decision released May 16, 1995

      Marcus G. Organschi and Charles F. Brower filed a brief for the appellants (defendants).

      Susan M. Williams filed a brief for the appellee (plaintiff).
   Lavery, J.

The defendants appeal from the judgment of the trial court challenging the trial court’s decision to tax the defendant a cost of $1000 for the plaintiff’s handwriting expert. The defendants claim that the trial court incorrectly awarded costs to the plaintiff for its handwriting expert where no statutory authority exists to support such an award. We agree and reverse the decision of the trial court.

The following facts are necessary to a disposition of this appeal. The plaintiff brought an action alleging breach of contract and seeking recovery of alleged sums due for certain accounting, tax preparation, and incorporation services. During its presentation of evidence, the plaintiff called a handwriting expert, as an issue of authenticity of signatures had arisen.

The court found for the plaintiff against the defendants Michael Mascetti and Tomik Corporation in the amount of $3694.83, plus 1.5 percent interest from January 1, 1993, to the date of judgment, and attorney’s fees in the amount of $554.23. The court further found for the defendant Catherine Mascetti as against the plaintiff.

The plaintiff filed an amended bill of costs for its handwriting expert. The.defendants filed an objection to the plaintiff’s amended bill of costs. The court held that $1000 should be taxed to the defendants for the fees and services of the plaintiff’s handwriting expert. The decision taxed a cost of $500 for the handwriting expert’s court appearance and $500 for handwriting analysis.

The court improperly awarded costs to the plaintiff for its handwriting expert fees because no statutory authority exists for the taxing of such costs. It has long been the law in Connecticut that “[c]osts are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them.” (Citations omitted.) Waterbury v. Macken, 100 Conn. 407, 413, 124 A. 5 (1924), appeal dismissed, 273 U.S. 646, 47 S. Ct. 244, 71 L. Ed. 820 (1926). In this case, the applicable statutes contain no provision authorizing the taxing of costs for handwriting experts.

This case is a civil action in which the matter in demand was less than $15,000. General Statutes § 52-257 (c) establishes the costs available for such an action. Additionally, General Statutes § 52-260 sets forth the costs available for witnesses generally, and for certain enumerated categories of witnesses. Neither section contains any provision for the award of fees for a handwriting expert.

Under § 52-257 (c), the plaintiff’s recovery of costs is limited to $10 for all proceedings before trial, and $15 for the trial of an issue of fact. That statute does not authorize the plaintiff to tax costs for fees of a handwriting expert such as the plaintiff seeks in this case.

General Statutes § 52-260 sets forth fees available for witnesses. For court attendance, costs may be taxed at fifty cents a day, and ten cents a mile for travel to the place of trial. Section 52-260 also provides specific fees and mileage allotments for police and firefighters when they testify at criminal or civil actions. The statute provides for fees for expert testimony only when such testimony is provided by certain practitioners of the healing arts, dentists, certain nurses, real estate appraisers and accountants. Nowhere does § 52-260 provide for expert witness fees when a handwriting expert is called to testify as an expert witness.

A prevailing party is entitled only to those costs that are expressly authorized by statute. Here, in the absence of such statutory authority, the plaintiff is not entitled to recover costs for its handwriting expert.

The judgment is reversed only as to the award of costs and the case is remanded for a recalculation of the award of costs consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-257 (c) provides: “In all civil actions in which the matter in demand is less than fifteen thousand dollars, the prevailing party shall receive, by way of indemnity, the following sums: (1) For all proceedings before trial, ten dollars; and (2) for the trial of an issue of fact or law, fifteen dollars, but, if more than one issue of fact or law is tried at one time, only one trial fee shall be allowed.”

       General Statutes § 52-260 provides: “(a) The fees of a witness for attendance before any court, the general assembly or any committee thereof, when summoned by the state, or before any legal authority, shall be fifty cents a day, and for travel to the place of trial, ten cents a mile. Whenever a garnishee is required to appear before any court, he shall receive the same fees as a witness in a civil action and be paid in the same manner. A witness in a criminal trial shall receive for travel at said rate for one day only, and for each day thereafter for travel in such case shall be paid only his actual traveling expenses, not exceeding ten cents a mile. The clerk of the superior court, upon request, shall, on the day of attendance, pay the fee of any witness summoned by the state to appear before the court. In criminal trials, no fees may be allowed to bystanders called as witnesses.
      “(b) When any regular or supernumerary policeman or any regular, volunteer or substitute fireman of any town, city or borough is summoned to testify in any criminal proceeding pending before the superior court or the department of liquor control and the policeman or fireman receives no compensation from the town, city or borough by which he is employed for the time so spent by him, the policeman or fireman shall be allowed and paid forty dollars, together with the mileage allowed by law to witnesses in criminal cases, for each day he is required to attend the proceedings.
      “(c) When any regular or supernumerary policeman or any regular or substitute fireman is summoned to testify in his capacity as a policeman or fireman in any court in a civil action and the policeman or fireman receives no compensation from the municipality by which he is employed for the time he is in attendance at court, there shall be allowed and paid to the policeman or fireman a witness fee of forty dollars, together with the mileage allowed by law to witnesses in criminal cases, for each day he is required to attend court. If the policeman or fireman testifies in any such proceeding or civil action on a vacation day or compensatory day off, he shall be paid the sum of forty dollars, together with the mileage allowed by law, notwithstanding the fact that he is receiving compensation for such day from the town, city or borough by which he is employed.
      “(d) The amounts paid under subsections (b) and (c) of this section shall be taxed as a part of the costs, and shall be in lieu of all other witness fees payable to such policeman or fireman.
      “(e) When any person is confined in a community correctional center upon the allegation of the state’s attorney that he will be a material witness in a pending criminal proceeding, he shall receive, in addition to his legal fees as a witness, two dollars for each day that he is so confined.
      “(f) When any practitioner of the healing arts as defined in section 20-1, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser.
      “(g) When any public accountant licensed under chapter 389 is subpoenaed by any party, other than the state, to testify in his capacity as a public accountant in any action or proceeding, the court shall determine a reasonable fee to be paid to the public accountant and such fee shall be paid by the party issuing such subpoena.”


author: Per Curiam.

text:
    State of Connecticut v. Kenneth Prutting
    (11998)
    O’Connell, Lavery and Schaller, Js.
    Argued February 8
    decision released March 7, 1995

      Dante R. Gallueci, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Carl Pickering v. Town of Windsor et al.
    (12803)
    O’Connell, Lavery and Schaller, Js.
    Argued February 8
    decision released March 7, 1995

      A. Paul Spinella, with whom was Susan V. Tirrell, for the appellant (plaintiff).

      JohnB. Farley, with whom was Stephen P. Fogerty, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. William M. Anderson, Jr. State of Connecticut v. William M. Anderson, Sr. State of Connecticut v. Michael Anderson
    (13052)
    O’Connell, Landau and Schallek, Js.
    Argued January 9
    decision released March 7, 1995

      Timothy C. Moynahan, for the appellants (defendants).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward Ricciardi, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgments are affirmed.


text:
    Cynthia Besade v. Interstate Security Services et al.
    (13395)
    O’Connell, Schaller and Cretella, Js.
    Argued February 7
    decision released March 7, 1995

      Richard S. Bartlett, for the appellant (named defendant).

      Matthew Shafner, with whom, on the brief, was Mark W. Oberlatz, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Shirley Brandon v. State of Connecticut
    (12520)
    Foti, Heiman and Hennessy, Js.
    Argued February 15
    decision released March 14, 1995

      Shirley Brandon, pro se, the appellant (plaintiff).

      Marianne I. Horn, assistant attorney general, with whom were Judith Merrill, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Jesse Jutkowitz v. Department of Health Services et al.
    (12244)
    Foti, Heiman and Schaller, Js.
    Argued February 14
    decision released March 14, 1995

      Henry A. Saltón, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants-appellees (defendants).

      Hanon W. Russell, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Herbert R. Kuhn v. Saul A. Sadinsky et al.
    (13458)
    O’Connell, Laveey and Landau, Js.
    Argued February 14
    decision released March 14, 1995

      Richard D. Haviland, for the appellants (defendants).

      William C. Kollman II, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Michael M. Hampden
    (13706)
    Foti, Landau and Hennessy, Js.
    Argued February 14
    decision released March 14, 1995

      Michael M. Hampden, pro se, the appellant (defendant).

      Kevin T. Kane, state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., former state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Marguerite Williams v. Kent E. Williams
    (12835)
    Dupont, C. J., and Lavery and Schaller, Js.
    Argued February 10
    decision released March 21, 1995

      Nathan Nasser, with whom, on the brief, was Gary B. Traystman, for the appellant-appellee (defendant).

      Howard B. Schiller, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Janet Jaykus v. Joseph Jaykus
    (13443)
    Landau, Heiman and Schaller, Js.
    Submitted on briefs February 17
    decision released March 21, 1995

      Edward Kanowitz filed a brief for the appellant (plaintiff).

      Joseph Jaykus, pro se, the appellee (defendant), filed a brief.
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Russell C. Hunter
    (13358)
    O’Connell, La very and Landau, Js.
    Argued February 14
    decision released March 21, 1995

      Richard M. Maraño, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, scad Maureen Keegan, assistant state’s attorney, for the appellee (state).
   Per Curiam.

This case is controlled by State v. Miller, 202 Conn. 463, 522 A.2d 249 (1987), and State v. Barnes, 27 Conn. App. 713, 610 A.2d 689, cert. denied, 223 Conn. 914, 614 A.2d 826 (1992).

The judgment is affirmed.


text:
    Loretta Ball v. Larry L. Ball
    (13161)
    Dupont, C. J., and Lavery and Schaller, Js.
    Argued February 10
    decision released March 21, 1995

      Tony Ghecas, for the appellant (defendant).

      Loretta Ball Adamo, pro se, the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Felix Burgos v. Commission on Human Rights and Opportunities et al.
    (12999)
    Dupont, C. J., and Lavery and Heiman, Js.
    Submitted on briefs February 16
    decision released March 21, 1995

      Felix Burgos, pro se, the appellant (plaintiff), filed a brief.

      Philip A. Murphy, Jr., commission counsel, and Charles Krich, staff attorney, filed a brief for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Board of Education of the Town of East Hartford v. Local 1933 of Council 4, AFSCME, AFL-CIO
    (13330)
    Foti, Landau and Spear, Js.
    Argued February 16
    decision released March 21, 1995

      J. William Gagne, Jr., with whom, on the brief, was Harry B. Elliott, Jr., for the appellant (defendant).

      Richard A. Mills, with whom, on the brief, were Linda L. Yoder and Sheila A. Huddleston, for the appellee (plaintiff).
   Per Curiam.

The defendant relied on only one claim at oral argument. That claim was not asserted before the arbitrators or the Superior Court, nor was it raised in the defendant’s brief or reply brief. We decline to consider this argument.

The judgment is affirmed.


text:
    Chase Manhattan Bank v. William H. Gilbert et al.
    (13467)
    Dupont, C. J., and Lavery and Spear, Js.
    Submitted on briefs February 16
    decision released March 21, 1995

      Dorothy Lerner, pro se, the appellant (defendant), filed a brief.

      John T. Bochanis filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Frank J. Riccio v. Department of Labor, Employment Security Appeals Division, Board of Review
    (13480)
    O’Connell, Foti and Hennessy, Js.
    Submitted on briefs February 17
    decision released March 21, 1995

      Francis J. Ficarra filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Sharon A. Scully and Charles A. Overend, assistant attorneys general, filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Stanley Gromacki, Jr. v. Mary Benito et al.
    (13563)
    O’Connell, Foti and Hennessy, Js.
    Submitted on briefs February 17
    decision released April 4, 1995

      Leonard M. Crone filed a brief for the appellant (plaintiff).

      Dean E. Weddall filed a brief for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    American Masons’ and Building Supply Company, Inc. v. Eppoliti, Inc.
    (13567)
    O’Connell, Foti and Hennessy, Js.
    Submitted on briefs February 17
    decision released April 4, 1995

      Steven R. Smart and Karin L. Welch filed a brief for the appellant (defendant).

      Walter H. Scanlon and Robert A. Ziegler filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Angel Colon v. Savin Brothers, Inc.
    (13759)
    O’Connell, Foti and Hennessy, Js.
    Submitted on briefs February 17
    decision released April 4, 1995

      Brian W. Prucher filed a brief for the appellant (plaintiff).

      James L. Pomeranz filed a brief for the appellees (defendants).
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    First Federal Bank, FSB v. Richard G. Kastens et al.
    (13768)
    Dupont, C. J., and Lavery and Spear, Js.
    Submitted on briefs February 16
    decision released April 4, 1995

      Richard Kastens, pro se, the appellant (named defendant), filed a brief.

      Robert G. Golger filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Katherine Aldrich v. David Hurwitt et al.
    (13886)
    Landau, Schaller and Spear, Js.
    Submitted on briefs February 17
    decision released April 4, 1995

      Nancy Aldrich filed a brief for the appellant (plaintiff).

      Karen K. Linder filed a brief for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Leon Cooper v. Board of Tax Review of the Town of Fairfield
    (13984)
    Landau, Heiman and Schaller, Js.
    Submitted on briefs February 17
    decision released April 4, 1995

      Leon Cooper, pro se, the appellant (plaintiff), filed a brief.

      James E. Rice and Linda R. Pesce filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Marvie Brye
    (13254)
    O’Connell, Lavery and Freedman, Js.
    Argued February 21
    decision released April 4, 1995

      Richard M. Maraño, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corrine Klatt, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Eric J. Yerkes
    (13778)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued February 21
    decision released April 4, 1995

      Bruce A. Sturman, public defender, for the appellant (defendant).

      JohnP. Gravalec-Pannone, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gregory Sessions
    (13817)
    O’Connell, Heiman and Speak, Js.
    Argued March 13
    decision released April 4, 1995

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Michael L. Regan, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Trap Falls Realty Holding Limited Partnership et al. v. Board of Tax Review of the City of Shelton
    (13067)
    Foti, Lavery and Landau, Js.
    Argued February 9
    decision released April 18, 1995

      Elliott B. Pollack, with whom were Lucy M. Ziobro, and, on the brief, Gregory F. Servodidio, for the appellants (plaintiffs).

      Thomas J. Welch, with whom was John A. Welch, Jr., for the appellee (defendant).
   Per Curiam.

This case is controlled by Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995).

The judgment is reversed and the case is remanded for further proceedings consistent with that opinion.


text:
    HH Holding Company, Inc. v. Board of Tax Review of the City of New London
    (13110)
    Foti, Lavery and Landau, Js.
    Argued February 9
    decision released April 18, 1995

      Elliott B. Pollack, with whom were Lucy M. Ziobro and, on the brief, Gregory F. Servodidio and Mark H. Zackin, legal intern, for the appellant (plaintiff).

      Thomas J. Londregan, with whom, on the brief, was Marguerite C. Driscoll, for the appellee (defendant).
   Per Curiam.

This case is controlled by Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995).

The judgment is reversed and the case is remanded for further proceedings consistent with that opinion.


text:
    Connecticut Housing Finance Authority v. Mattie Murrell et al.
    (10575)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Argued March 15
    decision released April 18, 1995

      Theodore A. Luhinsky, for the appellant (named defendant).

      Patrick T. Hutton, with whom, on the brief, was Christopher J. Fagan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Derrick Burchell
    (12502)
    Landau, Hennessy and Cretella, Js.
    Argued March 16
    decision released April 18, 1995

      Richard S. Cramer, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas E. Prior, former assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Stephen Ceslik v. Lauren Winer
    (12317)
    Landa0, Hennessy and Cretella, Js.
    Argued March 16
    decision released April 18, 1995

      Stephen Ceslik, pro se, the appellant (plaintiff).

      Gary A. Mastronardi, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Edilberto Jurado
    (13144)
    Landau, Hennessy and Cketella, Js.
    Argued March 16
    decision released April 18, 1995

      Richard S. Cramer, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant states’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael G. Zuk, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gwen Perry
    (13265)
    Foti, Landau and Spear, Js.
    Submitted on briefs March 17
    decision released April 18, 1995

      Gwen Perry, pro se, the appellant (defendant), filed a brief.

      Eugene Callahan, state’s attorney, and Susan C. Marks and Warren C. Murray, assistant state’s attorneys, filed a brief for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Alfred Prestia v. David Zajac et al.
    (12826)
    Dupont, C. J., and O’Connell and Hennessy, Js.
    Submitted on briefs March 17
    decision released April 18, 1995

      A. Paul Spinella and Sandra Cheffetz filed a brief for the appellant (plaintiff).

      Daniel L. Healy, assistant city attorney, filed a brief for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Howard Meehan v. Board of Education of the Town of East Lyme
    (13441)
    Lavery, Spear and Freedman, Js.
    Argued March 20
    decision released April 18, 1995

      Gilbert Shasha, with whom, on the brief, was Barry Ward, for the appellant (plaintiff).

      Kenneth J. McDonnell, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Gilbert Frempong v. U-Haul Company of Connecticut
    (13451)
    Dupont, C. J., and Heiman and Spear, Js.
    Argued March 16
    decision released April 25, 1995

      Gilbert Frempong, pro se, the appellant (plaintiff).

      David Monaster shy, with whom, on the brief, were DonnA. Swift and Mary Beattie Schairer, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Samuel Richards et al. v. Elijah James et al.
    (13682)
    Foti, Landau and Spear, Js.
    Submitted on briefs March 17
    decision released April 25, 1995

      Louis S. Avitabile filed a brief for the appellants (defendants).

      Christopher W. Boylan filed a brief for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Alan Waterman v. Marilyn Waterman
    (13789)
    Lavery, Heiman and Schaller, Js.
    Submitted on briefs March 17
    decision released April 25, 1995

      Mark J. DeGennaro filed a brief for the appellant (defendant).

      Barry C. Knott filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Burritt Interfinancial Bancorporation v. Elio Capuano et al.
    (12871)
    O’Connell, Foti and Lavery, Js.
    Argued March 21
    decision released April 25, 1995

      Dale H. King, for the appellants (named defendant et al.).

      Glory M. Lena, with whom, on the brief, was William S. Fish, Jr., for the appellee (substitute plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Country Lumber, Inc. v. New Haven Savings Bank et al.
    (13410)
    O’Connell, Foti and Lavery, Js.
    Argued March 21
    decision released April 25, 1995

      Walter A. DeAndrade, for the appellant (plaintiff).

      David A. Bali, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Danbury Savings and Loan Association, Inc. v. Environmental Equities, Inc., et al.
    (13261)
    O’Connell, Lavery and Hennessy, Js.
    Argued March 22
    decision released April 25, 1995

      Jerome P. Kovacs, pro se, the appellants (named defendant et ah).

      Robert E. Pace, with whom, on the brief, was Kimberly M. Canning, for the appellee (substitute plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the sole purpose of setting new law days for anyone who has a right to an equity of redemption.


text:
    Rosenblatt and Mills v. Nick Mathis
    (13287)
    O’Connell, Landau and Spear, Js.
    Argued March 23
    decision released April 25, 1995

      Nick Mathis, pro se, the appellant (defendant).

      David S. Gordon, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Marianne Risser v. Burton Risser
    (12640)
    Heiman, Schaller and Hennessy, Js.
    Argued March 23
    decision released April 25, 1995

      Marianne Risser, pro se, the appellant (plaintiff).

      Miles F. McDonald, Jr., for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    August J. Loehr, Jr. v. FRI Land Equities, Inc., et al.
    (13952)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued March 22
    decision released May 2, 1995

      Arthur P. Meisler, for the appellant (named defendant).

      Steven M. Ford, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Maryalice Cooke v. Richard Cooke
    (13271)
    O’Connell, Landau and Spear, Js.
    Argued March 23
    decision released May 2, 1995

      John R. Williams, for the appellant (plaintiff).

      David J. Elliott, with whom, on the brief, was Theodore C. Morris, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Richard J. Medlock, Sr. v. Cora L. Medlock
    (13405)
    O’Connell, Landau and Spear, Js.
    Argued March 23
    decision released May 2, 1995

      Linda P. Dunphy, with whom, on the brief, was John C. Kucej, for the appellant (plaintiff).

      Wilson J. Trombley, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Terry J. Dembek et al. v. Preston L. Epps et al.
    (13355)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued March 22
    decision released May 2, 1995

      Laurence V. Parnoff, for the appellant (named defendant).

      Gary A. Cicchiello, with whom was Steven K. San-born, law student intern, for the appellee (named plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Madeline Schwab v. Jerome W. Schwab, Jr.
    (13350)
    Heiman, Schaller and Hennessy, Js.
    Argued March 23
    decision released May 2, 1995

      George F. Martelon, Jr., with whom, on the brief, was Thomas B. Lynch, for the appellant (plaintiff).

      Jeffrey D. Ginzberg, with whom, on the brief, was Arnold M. Potash, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Thomas Bush v. Commissioner of Correction
    (13805)
    O’Connell, Foti and Lavery, Js.
    Argued March 21
    decision released May 2, 1995

      JohnF. Naizby, special public defender, for the appellant (petitioner).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerry Eisenman, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

After a review of the record and briefs, and after listening to the oral arguments, we conclude that the petitioner did not make a substantial showing that he has been denied a state or federal constitutional right or sustain the burden of persuasion that denial of certification to appeal was clear abuse of discretion or that an injustice had been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860,112 L. Ed. 2d 956 (1991). The habeas court's dismissal of the petitioner’s claim was predicated upon the credibility of the witnesses. The habeas court’s findings were not contested on appeal; there was neither a motion to correct nor a motion for articulation.

The appeal is dismissed.


text:
    Centerbank v. Lewis Associates II et al.
    (13742)
    O’Connell, Heiman and Hennessy, Js.
    Argued March 22
    decision released May 2, 1995

      Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, for the appellant (defendant Robert N. Williams).

      Edward J. Kelleher, with whom, on the brief, was Robert L. Cavanaugh, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Bernard Gipson
    (13553)
    Landau, Spear and Hennessy, Js.
    Argued April 18
    decision released May 16, 1995

      Susan Brown, assistant public defender, for the appellant (defendant).

      JoAnneSulik, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Elizabeth Grazioso v. Victoria DeGoia
    (13447)
    O’Connell, Foti and Hennessy, Js.
    Argued April 18
    decision released May 16, 1995

      Joseph F. Trotta, with whom, on the brief, were William F. Gallagher and Cynthia C. Bott, for the appellant (plaintiff).

      Robyn L. Sondak, with whom, on the brief, was Kirby G. Huget, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Salvatore Fazzino v. Brian Deperry et al.
    (13669)
    Foti, Spear and Hennessy, Js.
    Submitted on briefs April 21
    decision released May 16, 1995

      John F. Harvey, Jr., filed a brief for the appellant (defendant Patricia D. Deperry).

      Joseph S. Borkowski filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Amerigo Scarpa v. Robert Casner
    (13698)
    Foti, Spear and Hennessy, Js.
    Submitted on briefs April 21
    decision released May 16, 1995

      Theodore V. Raczka, Nancy Conaway-Raczka and John F. Shaw filed a brief for the appellant (defendant).

      Nicholas W. Francis filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Federal Home Loan Mortgage Corporation v. Carolyn F. Hoerle et al.
    (13717)
    Foti, Lavery and Spear, Js.
    Argued April 21
    decision released May 16, 1995

      Gary J. C. Woodfield, for the appellant (named defendant).

      Alexander Aponte, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    Anthony G. Apicella et al. v. Connecticut Attorneys Title Insurance Company
    (13505)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued April 19
    decision released May 16, 1995

      Lori Weleh-Rubin, with whom was Douglas Apicella, for the appellants (plaintiffs).

      Craig A. Fontaine, with whom was Paul T. Edwards, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Nancy A. Monk v. Charles M. Fazio Charles M. Fazio v. Nancy A. Monk
    (13260)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued April 20
    decision released May 16, 1995

      Ridgely W. Brown, with whom, on the brief, was Benjamin E. Gershberg, for the appellant (defendant in the first case, plaintiff in the second case).

      Jean L. Welty, for the appellee (plaintiff in the first case, defendant in the second case).

      Carolyn Comerford, for the minor child.
   Per Curiam.

The judgment is affirmed.


text:
    Raul Vega v. Department of Liquor Control
    (13377)
    Dupont, C. J., and Laveky and Hennessy, Js.
    Argued April 19
    decision released May 16, 1995

      Brian Thomas Walsh, for the appellant (plaintiff).

      Sharon M. Hartley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Clifford M. Pettway
    (12855)
    Foti, Landau and Heiman, Js.
    Argued April 24
    decision released May 16, 1995

      David M. Abbamonte, assistant public defender, for the appellant (defendant).

      Megan A. McLoughlin, certified legal intern, with whom were Richard F. Jacobson, assistant state’s attorney, and, on the brief, Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Elijah Pink
    (13302)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued April 24
    decision released May 16, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy Liston, senior assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


author: Heiman, J.

text:
    Gary Zaleta v. Town of Fairfield
    (13419)
    Foti, Laveey and Heiman, Js.
    Argued February 6
    decision released May 23, 1995

      Donal C. Collimore, assistant town attorney, for the appellant (defendant).

      George W. Boath, Jr., with whom, on the brief, was Vincent M. Zanella, Jr., for the appellee (plaintiff).
   Heiman, J.

The defendant appeals, pursuant to General Statutes § 31-3011), from the decision of the compensation review board of the workers’ compensation commission finding the plaintiff entitled to benefits under the statute providing compensation for heart disease and hypertension to police officers and firefighters, General Statutes § 7-433c. On appeal, the defendant claims that the review board improperly determined that the plaintiff’s hypertension was an occupational disease and, therefore, subject to the three year statute of limitations provided in General Statutes § 31-294c.

The following facts, stipulated to by the parties, are necessary for the resolution of this appeal. In 1977, the plaintiff was hired by the defendant as a firefighter after passing a physical examination in which no evidence of heart disease or hypertension was revealed. On September 14,1987, the plaintiff was diagnosed as hypertensive and treated with medication. On January 4,1988, the plaintiff developed a severe headache while at work and an emergency medical technician was asked to check his blood pressure. The medical technician found the plaintiff’s blood pressure to be 160/100, and the plaintiff was sent home for the day. The plaintiff was able to return to work the next day.

On December 1,1989, the plaintiff requested the first of a series of formal hearings with the defendant, seeking benefits under General Statutes § 7-433c. He subsequently filed a form 30-C on December 3, 1990. The defendant timely contested liability on December 10, 1990, claiming that the plaintiff failed to make a claim within one year of his diagnosis.

A formal hearing was held on August 30,1991, before the workers’ compensation commissioner for the fourth district, who found in favor of the plaintiff. The commissioner found that the plaintiff’s claim was timely because “hypertension is an occupational disease and thus governed by the three year statute for filing that type of claim.”

On July 14,1992, the defendant moved to correct the finding of the commissioner that hypertension is an occupational disease governed by the three year statute of limitations. In support of its motion, the defendant claimed that the plaintiff failed to introduce any evidence to justify such a finding. This motion was denied and the defendant timely appealed to the compensation review board of the workers’ compensation commission. See General Statutes § 31-301.

The board affirmed the decision of the commissioner, determining that the language of the statute evinces “that the legislature has determined, without the necessity of further evidentiary support in the record, that hypertension is so distinctively associated with the occupations of police officer and firefighter that there is a direct causal connection between the occupational duties and hypertension sufficient to qualify hypertension as an occupational disease for purposes of a claim under § 7-433c.”

On appeal to this court, the defendant claims that the compensation review board improperly determined that a claimant seeking benefits under § 7-433c need not submit evidence to establish that hypertension is an occupational disease in order to benefit from the three year statute of limitations. We agree with the defendant and reverse the decision of the compensation review board.

Before reaching the merits of the defendant’s appeal, we reiterate the standards governing our review of decisions by the compensation review board. “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. Peoples Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference ille-gaily or unreasonably drawn from them. Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)]. Id. Our scope of review of the actions of the review [board] is similarly limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 (1990). Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).” (Internal quotation marks omitted.) Romanski v. West Hartford, 34 Conn. App. 307, 316, 641 A.2d 439 (1994).

Section 7-433c provides compensation to police officers and firefighters who suffer from heart disease or hypertension and who meet the requirements set forth in the statute. In order to collect the benefits provided by § 7-433c, a claimant need show only that he or she is a uniformed member of a paid fire department or a regular member of a paid police department, whose preemployment physical examination revealed no evidence of hypertension or heart disease, who now suffers a condition or an impairment of health caused by hypertension or heart disease that has resulted in death or disability, and has suffered a resultant economic loss. Suprenant v. New Britain, 28 Conn. App. 754, 758, 611 A.2d 941 (1992).

Unlike eligibility for benefits under the Workers’ Compensation Act, a claimant under § 7-433c need not show that “the disease resulted from the employee’s occupation or . . . occurred in the line and scope of his employment.” (Internal quotation marks omitted.) Collins v. West Haven, 210 Conn. 423, 427, 555 A.2d 981 (1989), citing Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984), and Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670, 425 A.2d 131 (1979). In this way, § 7-433c acts as bonus legislation that provides “special compensation”; Collins v. West Haven, supra, 426; to firefighters and police officers by allowing those who suffer from heart disease or hypertension outside the line of duty to collect benefits in the same manner as those who are injured in the line of duty. Lambert v. Bridgeport, 204 Conn. 563, 566-67, 529 A.2d 184 (1987); Pyne v. New Haven, 177 Conn. 456, 460-61, 418 A.2d 899 (1979).

“While the Workers’ Compensation Act and § 7-433c are separate pieces of legislation, ‘[t]he procedure for determining recovery under General Statutes § 7-433c is the same as that outlined in chapter 568 [General Statutes § 31-275 et seq.] . . . ” Hyatt v. Milford, 26 Conn. App. 194, 199, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1993), quoting Bakelaarv. West Haven, supra, 193 Conn. 68; see also Felia v. Westport, 214 Conn. 181, 184-85, 571 A.2d 89 (1990). This includes compliance with the notice provisions of § 31-294c. Cuccuro v. West Haven, 6 Conn. App. 265, 267, 505 A.2d 1, cert. denied, 199 Conn. 804, 508 A.2d 31 (1986) (referring to predecessor to § 31-294c, General Statutes [Rev. to 1989] § 31-294). “Complianpe with [§ 31-294e] is essential to maintaining a elaim for eompensation under chapter 568 and therefore under § 7-433c because timely notice is a jurisdictional requirement that cannot be waived.” Collins v. West Haven, supra, 210 Conn. 430.

Under § 31-294c (a), a claimant must notify his employer of á claim for compensation “within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease . . . which caused the personal injury. ...” An occupational disease is further defined as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such . . . .” General Statutes § 31-275 (15). Without evidence establishing that the claimant’s injury is a result of an occupational disease, the one year statute of limitations applies. See Crochiere v. Board of Education, 227 Conn. 333, 352, 630 A.2d 1027 (1993).

The plaintiff here produced no evidence to establish that hypertension is an occupational disease entitling him to the benefit of the three year statute of limitations. The plaintiff instead relied only on the language of § 7-433c, claiming that it evinces legislative recognition of heart disease and hypertension as occupational diseases vis-a-vis police officers and firefighters. A brief look at the history of § 7-433c reveals that the language of the statute makes no such presumption.

The statute concerning heart disease and hypertension was originally drafted as part of the Workers’ Compensation Act and provided police officers and firefighters with a rebuttable presumption that heart disease and hypertension were causally connected to their occupations. Morgan v. East Haven, 208 Conn. 576, 580, 546 A.2d 243 (1988). In 1969, this rebuttable presumption was made conclusive and the statute was soon declared unconstitutional in Ducharme v. Putnam, 161 Conn. 135, 143, 285 A.2d 318 (1971). In response to that problem, § 7-433c was enacted in its present form in 1977 as legislation separate and distinct from the Workers’ Compensation Act. Morgan v. East Haven, supra, 581.

“The fact that the constitutionality of § 7-433c as ‘class preference’ legislation was upheld by [our Supreme Court] in . . . Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 [1975], as serving a proper public purpose, does not compel a conclusion that the statute implicitly includes an affirmative legislative finding of work-relatedness in all cases.” Plainville v. Travelers Indemnity Co., supra, 178 Conn. 673. In fact, our courts have consistently held that § 7-433c is not an “occupational disease law.” As stated in Plainville v. Travelers Indemnity Co., supra, 673: “Although the preamble to General Statutes § 7-433c indicates a legislative recognition of the risks to which policemen and firemen are exposed, ‘including an unusual high degree of susceptibility to heart disease and hypertension,’ we do not construe such language as the equivalent of a legislative finding that all heart ailments suffered by firemen and policemen are causally related to their employment as the plaintiff seems to suggest.”

The compensation review board, therefore, had no evidence before it that hypertension is an occupational disease and its finding that the plaintiff’s claim was subject to the three year statute of limitations cannot stand. See Romanski v. West Hartford, supra, 34 Conn. App. 316.

The decision of the compensation review board of the workers’ compensation commission is reversed and the case is remanded with direction to sustain the defendant’s appeal.

In this opinion the other judges concurred.

       General Statutes § 31-30 lb provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”

       General Statutes § 7-433c provides in pertinent part: “(a) In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusually high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department ora regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heqrt disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment . . . .”

       General Statutes § 31-294c provides in pertinent part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . .


text:
    State of Connecticut v. Charles J. Burns
    (13681)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued March 23
    decision released May 23, 1995

      David B. Bachman, special public defender, for the appellant (defendant).

      Kimberly A. Graham, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Alfred Baldwin, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant, who was convicted of operating a motor vehicle while under the influence of intoxicating liquor; General Statutes § 14-227a (a); appeals, following a conditional plea of nolo contendere to the second part of the information, challenging the imposition of enhanced penalties under General Statutes § 14-227a (h) (3). On appeal, the defendant claims that the trial court improperly denied his motion to dismiss the second part of the information because his conviction of a third violation of driving while under the influence did not occur within five years of a prior conviction. We agree with the defendant and reverse the judgment of the trial court.

The facts underlying this appeal are not in dispute. On July 20, 1993, the defendant was arrested and charged with reckless driving and operating a motor vehicle while under the influence of liquor or drugs. On March 1,1994, the state filed an amended second part of the information, charging the defendant as a third time offender subject to the enhanced penalties of § 14-227a (h) (3).

On March 14,1994, a jury found the defendant guilty of operating a motor vehicle while under the influence of liquor or drugs. The defendant moved to dismiss the amended second part of the information against him on March 23, 1994. In support of this motion, the defendant alleged that his prior convictions occurred on October 13 and 28,1988, and that both convictions, therefore, had occurred more than five years before his present conviction.

After a hearing, the trial court denied the defendant’s motion to dismiss, finding that the enhanced penalties of General Statutes § 14-227a (h) (3) applied to the defendant because “his last conviction was within five years of his most recent violation.” Thereafter, the defendant entered a conditional plea of nolo contendere to being a third offender as set out in § 14-227a (h) (3). The defendant was sentenced to two years imprisonment and fined $1000. In addition, his operator’s license was suspended for three years.

On appeal, the defendant claims that the trial court improperly denied his motion to dismiss. In support of this claim, the defendant asserts that the five year period outlined in § 14-227a (h) (3) must be measured from the date of a prior conviction to the date of the current conviction, in other words, from conviction to conviction. The state, on the other hand, argues that the crucial period is measured from the date of a prior conviction to the date of the current violation, in this case, the date of arrest. We agree with the defendant that the trial court used an improper method of calculating the five year period and, therefore, reverse the judgment of the trial court.

In order to resolve the issue presented to us, we must resort to statutory interpretation in accordance with well defined principles that require that we ascertain and give effect to the apparent intent of the legislature. Samperi v. Inlands Wetlands Agency, 226 Conn. 579, 591, 628 A.2d 1286 (1993); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). “To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. . . . If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise. . . .” (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). “Only if the language is ambiguous do we turn for guidance to the legislative history and the purpose the statute is intended to serve.” Read v. Planning & Zoning Commission, 35 Conn. App. 317, 322, 646 A.2d 222 (1994), citing State v. Kozlowski, 199 Conn. 667, 674, 509 A.2d 20 (1986).

Section 14-227a (h) (3) expressly and unambiguously provides that its enhanced penalties apply to a “conviction of a third violation [of any provision of § 14-227a (a)] within five years after a prior conviction for the same offense.” (Emphasis added.) We must conclude, therefore, that the plain meaning of the language employed in the statute requires the five year period to run from conviction to conviction.

We find further support for this conclusion in our Supreme Court’s decision in State v. Mattioli, supra, 210 Conn. 573. In Mattioli, the Supreme Court addressed the issue of whether all three convictions were required to occur within the same five year span in order for a defendant to be subjected to the enhanced penalties of § 14-227a (h) (3). In concluding that only one of the prior convictions needed to occur within the five year period, the court stated: “The language of § 14-227a (h) (3), interpreted according to the ordinary meaning of its words, plainly states that it applies to a ‘conviction of a third violation within five years after a prior conviction ....’” State v. Mattioli, supra, 577. “As written, § 14-227a (h) (3) allows a person to be adjudged a third offender only after three convictions for a violation of the statute.” Id., 578.

While we do not question that the legislature could provide for enhancement of penalties for operating a motor vehicle while under the influence of liquor or drugs without creating a time limit for consideration of prior offenses; id., 579; the legislature instead elected to create a time limitation. “We must construe the act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions. . . . Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.” (Citations omitted; internal quotation marks omitted.) Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); see also State v. Hanson, 210 Conn. 519, 529, 556 A.2d 1007 (1989).

We conclude that the period of time during which the enhancement provisions of § 14-227a (h) (3) are applicable must be measured from conviction to conviction and that the determination that the period was to be measured from conviction to violation was improper.

The judgment is reversed in part and the case is remanded with direction to grant the defendant’s motion to dismiss the amended second part of the information and to resentence the defendant in accordance with his conviction of a violation of § 14-227a.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway ... (I) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the . . . motion to dismiss.”
      Practice Book § 4003 provides similarly. The plea of nolo contendere as accepted by the trial court does not disclose which of the two alternative vehicles the defendant intended to invoke.

       General Statutes § 14-227a (h) provides in pertinent part: “penalties for operation while under the influence. Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .”

       We note that, although the defendant stated on the appeal form that this appeal is from the “judgment of conviction for driving under the influence, [General Statutes] §§ 14-227a (a) (1) and 14-227a (h) (3),” the only issue that is raised on appeal is the propriety of the trial court’s denial of the motion to dismiss. See General Statutes § 54-94a and Practice Book § 4003.

       On March 9,1994, the defendant pleaded guilty to the charge of reckless driving in violation of General Statutes § 14-222.

       The state does not dispute the dates of the defendant’s prior convictions.


author: Dupont, C. J.

text:
    William R. Langton v. Town of Westport
    (13054)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued January 17
    decision released May 23, 1995

      Paul J. Pacifico, for the appellant (plaintiff).

      Christopher M. Vossler, with whom was JohnJ. Bog-danski, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from a judgment for the defendant following a jury verdict and from the denial of his motion to open the judgment and set aside the verdict. We affirm the judgment of the trial court.

The plaintiffs amended one count complaint alleged that he was riding his bicycle on a public street and highway in the defendant town of Westport (town) when the front wheel of his bicycle dropped up to its axle in a space between a grate and a door of the grate located on the street. The plaintiff alleged a breach of a statutory duty pursuant to General Statutes § 13a-149, claiming that the town had both actual and constructive notice of the “defective and dangerous condition” of the grate. The plaintiff also alleged that the highway was dangerous and defective because the space was hazardous, the grating was uneven, the grate was improperly maintained and the town had made no attempt to fill the space. The plaintiff did not specifically allege that the condition of the grate constituted a design defect or that the defect had been in need of repair from the time of its placement in the road. The plaintiff alleged that the town’s actions were the sole proximate cause of his injuries.

The town, in its answer, admitted that the space was a dangerous condition on the date of the accident and that the condition was a cause of the plaintiff’s injuries, but denied that the condition was the sole proximate cause of the plaintiff’s injuries. The town also denied that it had actual or constructive notice of the dangerous condition that it failed to remedy, as was alleged by the plaintiff.

The jury answered no to an interrogatory that asked: “Assuming that the gap in the grate was a defect in the highway, did the town of Westport have notice of the hazard or risk posed by this defect prior to the date of this accident?” The jury then returned a verdict for the town in accordance with the instructions of the interrogatories. The plaintiff raised no objection to the content or form of the interrogatories.

The questions raised by other interrogatories, whether the alleged defect was the sole proximate cause of the plaintiffs injuries and whether the plaintiff was free of contributory negligence, were never reached by the jury because it found, pursuant to the first interrogatory, that the town had no notice of the hazard or its risk prior to the accident.

The issue, as framed by the plaintiff on appeal, is whether the verdict for the town was in conformity with the evidence. The plaintiff claims that the jury could not have answered the interrogatory as it did, given the evidence, the trial court’s charge and the admission by the town that the space in the grate was a dangerous condition on the date of the accident. The plaintiff’s sole basis for his motion to open the judgment and set aside the verdict was that the “verdict was against the evidence.” The plaintiff does not claim that any evidentiary rulings of the court were incorrect nor does he argue that the charge of the court was deficient or improper as to notice or in any other way. The court denied the motion in a written memorandum of decision.

The trial court stated that the town “had notice of the existence of the basic condition of the grate for several years, having observed it on numerous occasions,” and that the town had stipulated “that the condition which caused the plaintiffs injuries was a defect at the time of the accident.” The court stated that the issue for it to decide on the plaintiffs motion to set aside the verdict for the town was whether, if the condition was a defect at the time of the accident, it must also have been a defect when it originated. The court concludes that the plaintiffs action resembled a claim for a defective design, for which he could not recover under General Statutes § 13a-149 on these facts. The case, as the court notes, was not submitted to the jury as a design defect case.

The court reasoned that the jury could have reasonably concluded that the town did not have actual or constructive notice of the defect because there was no evidence that the space in the grate had changed after the date of its installation, and because, even if the town could have been responsible for a design defect caused by another existing from the date of the installation, there was no evidence of a negligent continuance by the town of the design defect after the town knew or should have known of it.

On a motion to set aside a verdict, a trial court has wide discretion, and every reasonable presumption should be made to uphold the correctness of its ruling. Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988). A court has the discretion to set aside a verdict for a defendant if, on the basis of the evidence, it is so unreasonable that it compels a conclusion that it was the result of a mistake. Id., 27. That is not the case here.

A claim arising from a defective design is not per se incompatible with recovery under § 13a-149. If the design defect is so egregious, requiring obvious correction, to neglect to make the repairs to correct the design defect can be a basis for an action under the statute. Hoyt v. Danbury, 69 Conn. 341, 352, 37 A. 1051 (1897). Many cases since Hoyt have reiterated what began as an exception to the general rule, the end result being the exception has almost consumed the rule. Perrotti v. Bennett, 94 Conn. 533, 539, 109 A. 890 (1920); see also Hall v. Bums, 213 Conn. 446, 569 A.2d 10 (1990); Donnelly v. Ives, 159 Conn. 163, 268 A.2d 384 (1970); Hickey v. Newton, 150 Conn. 514, 192 A.2d 199 (1963); Hay v. Hill, 137 Conn. 285, 76 A.2d 924 (1950); Trotta v. Branford, 26 Conn. App. 407, 601 A.2d 1036 (1992). The language oí Hoyt’s exception has been passed along from case to case like a judicial heirloom, the test being “were the plan of construction adopted one which was totally inadmissible . . . the highway would have been in such a defective condition as to have been out of repair from the beginning.” Hoyt v. Danbury, supra, 352.

It is not necessary to allege a design defect if it is implicit throughout the proceedings that the plaintiff is complaining of a condition that was “out of repair from the beginning.” (Internal quotation marks omitted.) Trotta v. Branford, supra, 26 Conn. App. 411; see Sirot v. Burns, 37 Conn. App. 551, 657 A.2d 681 (1995); see also Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986). It would not necessarily be fatal, therefore, if the plaintiffs cause of action were one for damages due to design defect, that he failed to allege a design defect, which the town negligently allowed to exist after it knew or should have known that it could cause injury to cyclists using the highway.

The plaintiff here, however, did not attempt to prove to the jury that the town had notice of a design defect, namely, notice that the construction of the grate was so defective as to be out of repair from the beginning. SeeD’Arcy v. Shugrue, 5 Conn. App. 12, 496 A.2d 967 (1985). The evidence was that the plaintiff was an experienced cyclist, owning between twenty and thirty bicycles, who had ridden over the very grate about 100 times without incident and without any awareness that the condition was a hazard requiring correction. The town had a bicycle commission whose function was to advise the town’s public works department about the use of the streets by cyclists. No complaints had ever been reported by the commission to the town about the grate. Thus, the jury’s answer to the interrogatory does not compel the conclusion that its answer was a mistake.

If the plaintiff’s cause of action rests, not on a design defect, but on a defect arising from other causes, there can be no recovery under the statute unless the defect has existed long enough for the town to be charged with notice of it. Petrelli v. New Haven, 116 Conn. 144, 163 A. 759 (1933); Crotty v. Danbury, 79 Conn. 379, 65 A. 147 (1906). Whether there is constructive notice of the defect depends on the nature of the defect, that is, whether it is palpably dangerous given its location and the extent of the use of the highway. Tireadi v. Waterbury, 128 Conn. 464, 469-70, 23 A.2d 919 (1942). A defect is defined as “[a]ny object in . . . the traveled path, which would necessarily obstruct or hinder one in the use of the road ... or which, from its nature and position, would be likely to produce that result . . . .” (Internal quotation marks omitted.) Hall v. Burns, supra, 213 Conn. 461-62; Hay v. Hill, supra, 137 Conn. 288; Hewison v. New Haven, 34 Conn. 136, 141 (1867). The mere fact that a defect exists, however, does not allow recovery under § 13a-149, which also requires proof that the defendant had actual or constructive notice of the defect and had a reasonable opportunity to correct the defect. Hall v. Burns, supra, 462. The plaintiff did not prove to the jury that the town knew that the grate was likely to obstruct a bicycle wheel.

The plaintiff asked the trial court to conclude that because the town was aware of the space in the grate for several years prior to the accident, and because the town admitted that the condition was dangerous as of the date of the accident, the jury could not have determined, except by mistake, that the town did not have notice prior to the accident that the grate would be likely to hinder or obstruct a bicycle wheel. The trial court was correct in not doing so, and, therefore, in denying the plaintiff’s motion to open the judgment and to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       There was evidence that Connecticut Light and Power Company had designed the grate to cover a utility vault and was responsible for its maintenance. The court states in its memorandum of decision denying the plaintiff’s motion to open the judgment that if the defect existed from the date of the grate’s installation in the road it was due to a faulty design by Connecticut Light and Power Company.