author: BERDON, J.

text:
    SILVERMINE INVESTORS, LLC v. CALL CENTER TECHNOLOGIES, INC.
    (AC 23307)
    Laveiy, C. ,1., and Dranginis and Berdon, Js.

      Argued September 18, 2003 —
    officially released March 2, 2004

      Gregg A. Brauneisen, for the appellant (defendant).

      Sanford D. Kaufman, for the appellee (plaintiff).
   Opinion

BERDON, J.

In this summary process action, the defendant, Call Center Technologies, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, Silvermine Investors, LLC. On appeal, the defendant claims that the court improperly found that (1) the notice to quit was valid, (2) it was obligated to pay the rent that was due despite the fact that there was an actual partial eviction, (3) the plaintiff was entitled to use and occupancy payments because the defendant had been evicted partially from the premises and (4) the plaintiff, if entitled to use and occupancy payments, was entitled to receive payments of only $6200 per month. We affirm the judgment of the trial court.

The following facts are not in dispute. On August 1, 2000, the defendant entered into a three year lease with the plaintiff for property that the plaintiff owned in Brookfield. The lease was for a unit, 4800 square feet in size, to be utilized as an office and warehouse. Subsequently, the parties entered into negotiations to lease a larger unit. On December 7,2000, the parties amended the original lease. Under the terms of the amended lease, the defendant agreed to surrender the unit it was currently renting and move to the larger unit, which was 9600 square feet in size. The monthly rent for the larger unit was $6200.

The defendant did not pay the rent for January, 2002, when rent was due. On January 17, 2002, the plaintiff sent the defendant a notice stating that the rent was past due and invoked a clause in the lease charging a late fee. When the rental payment was not forthcoming, on January 29, 2002, the plaintiff caused a notice to quit possession to be served on the defendant. After the time to quit possession of the premises had passed and the defendant failed to leave, the plaintiff commenced this summary process action on the basis of nonpayment of rent.

Following a trial, the court found in favor of the plaintiff and ordered the immediate possession of the premises. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found that the notice to quit was valid, which is a prerequisite for a court to have jurisdiction over a summary process action. “The jurisdiction of the Superior Court in summary process actions ... is subject to a condition precedent. Before the court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit.” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989). General Statutes § 47a-23 (a) provides in relevant part that “when a rental agreement or lease . . . terminates for . . . nonpayment of rent when due for commercial property . . . [the] owner . . . shall give notice to each lessee or occupant to quit possession or occupancy of such . . . building ... at least three days before the termination of the rental agreement ... or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.” The defendant claims that the statutory notice to quit possession was invalid because the defendant did not owe any rent when the notice was served on January 29, 2002. The defendant argues that (1) under the terms of the lease, it had until the thirtieth day of the month to pay the rent and (2) it had overpaid the rent during the previous eleven months. We disagree with both of the defendant’s claims.

The following facts and procedural history are relevant to our resolution of those claims. Under the terms of the lease that the parties entered into on August 1, 2000, the rent was to be paid by the defendant on the first day of each month. Section three of the lease also states: “If said rent is not received at [the plaintiffs] office before the 15th day of each month, then, and in such event, [the plaintiff] may charge a late fee of five (5%) percent of the total amount due. The [plaintiff] shall notify the [defendant] of the fact that the payment has not been received and the [defendant] shall have ten (10) days from that date to make payment. In any event, any payment not received by the 30th of the month shall be deemed a default under this Lease.”

The defendant did not pay the rent that was due on January 1, 2002. On January 17, 2002, the defendant received a certified notice from the plaintiff, indicating that the rental payment tor January had not been paid, invoking the late fee clause of the lease and demanding that the defendant pay the rent and a 5 percent late fee within ten days. When the defendant did not pay the January rent, the plaintiff had the defendant served with a notice to quit on January 29, 2002. The defendant attempted to tender payment of the January rent to the plaintiff on January 31, 2002, after being served with the statutory notice to quit on January 29, 2002, but the plaintiff refused to accept payment. The plaintiff then initiated this summary process action.

The court found that the notice to quit was not defective and that the defendant had not paid the January, 2002 rent pursuant to the terms of the lease. The court interpreted the lease to read that the defendant had ten days to pay the rent after it received notice that the rent was late, which notice the defendant received on January 17, 2002. Accordingly, the court found that the defendant was in default when it had not paid the January rent by January 27, 2002.

At the outset, we set forth our standard of review. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). We note, however, “[w]hen there is ambiguity, we must construe contractual terms against the drafter.” (Internal quotation marks omitted.) Rund v. Melillo, 63 Conn. App. 216, 222, 772 A.2d 774 (2001). We find no ambiguity and will therefore review the court’s decision de novo.

A

The defendant first claims that under the terms of the lease, no rent was due until the thirtieth day of the month. Accordingly, because the defendant was served with the statutory notice to quit on January 29, 2002, it is the defendant’s contention that the notice to quit was invalid because no rent was due at that time. We disagree.

Under § 3 of the lease, entitled “Rent,” the lease states in relevant part: “All rental amounts shall be due on the first day of each and every month, in advance, without set-off or deduction of any kind. . . .” (Emphasis added.) It is undisputed that the defendant did not pay its rent for January, 2002, by January 1, 2002, nor did the defendant pay the rent during the ten day grace period it had after the plaintiff invoked the late fee clause of the lease.

The defendant’s claim that it had until the thirtieth of the month to pay the rent is based on the following language contained in § 3 of the lease: “If said rent is not received at [the plaintiffs] office by the 15th day of each month, then, and in such event, [the plaintiff] may charge a late fee of five (5%) percent of the total amount due. The [plaintiff] shall notify the [defendant] of the fact that the payment has not been received and the [defendant] shall have ten (10) days from that date to make payment. In any event, any payment not received by the 30th of the month shall be deemed a default under this Lease.”

It is the defendant’s contention that the last sentence of the previously quoted portion of the lease, “[i]n any event, any payment not received by the 30th of the month shall be deemed a default under this Lease,” supports its position that the rent was not due until the thirtieth of the month. We do not agree. The defendant ignores the fact that the lease also provides that the defendant would be in default if the plaintiff elected to invoke the late fee clause of the lease by sending written notice to the defendant that the rental payment was late and if the defendant failed to pay the rent within ten days from the date of that notice.

The defendant did not pay the rent that was due by the fir st of the month. On January 17, 2002, the plaintiff invoked the late fee clause of the lease by sending notice to the defendant that it was late in paying its rent. The defendant then had ten days from January 17, 2002 to pay the rent. On January 29, 2002, which was twelve days after the defendant received notice that it was late in paying the rent and two days after the ten day notice period had run, the plaintiff served the statutory notice to quit. We agree with the determination by the court that the notice to quit was valid.

B

The defendant next claims that the court improperly found that the notice to quit was valid because no rent was due under the amendment to the lease, as the defendant had overpaid its rent the previous eleven months. Specifically, the defendant claims that it had overpaid the rent that was due by $1600 per month since the amendment to the lease went into effect. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. Under the terms of the original lease, the defendant agreed to lease unit four at 559A Federal Road in Brookfield, which was 4800 square feet in size. The monthly rent for the premises was $3900, which included a common charge. The common charge was $2 per square foot, to be adjusted upward or downward depending on actual costs.

On December 7, 2000, the parties amended the lease when the defendant agreed to rent units two and three and to surrender unit four. Under the terms of the lease, the rent for units two and three, which had a total square footage of 9600 square feet, was to be $6200. The amendment was silent as to a charge for the common fee. The amendment did provide, however, that except as modified by the amendment, the terms and conditions of the original lease “shall continue in full force and effect as written.”

It is the defendant’s contention that the common fee was included in the monthly rental figure of $6200 for units two and three. Accordingly, the defendant claims that because it had been paying $7800 per month as rent, it did not owe the plaintiff rent in January, 2002, as it had overpaid $17,600 during the previous eleven months. In support of its claim, the defendant relies on the language of the amendment to the lease: “The monthly rental is $6,200.00 per month.” The defendant’s interpretation of the amendment to the lease, however, fails to take into account the original lease, which still governed the parties except as modified by the amendment. Under the terms of the original lease, the defendant was required to pay a common fee in addition to the rent. There is nothing in the amendment that leads us to conclude that the defendant was no longer required to pay a common fee in addition to the rent. If the plaintiff intended that the common charge be included in the rental figure, it could have so provided in the amendment to the lease.

Additionally, units two and three, encompassing 9600 square feet, are twice the size of unit four, which was 4800 square feet in size. There was testimony at trial that the parties intended that because the size of the property was going to double, the rent and common fee would also double. Under the original lease for unit four, the rent and common fee was set at $3900. Accordingly, if it were the intent of the parties to double the rent and common fee when the defendant moved to the larger facility, the rent and common fee would be $7800, the amount that the plaintiff invoiced and that the defendant paid for eleven months. Accordingly, we conclude that the court properly found that the defendant had not overpaid its rent for eleven months.

II

The defendant next claims that the court improperly found that it was obligated to pay the rent that was due because there was an actual partial eviction due to the fact that the plaintiff had left building materials on the premises that the defendant was renting. We decline to review that claim.

In its oral decision, the court summarily dismissed the defendant’s defense without any analysis, stating: “[T]here was no partial or constructive eviction.” “[B]ecause the defendant failed to present an adequate record for review, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual recor d developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn. App. 768, 773, 789 A.2d 528 (2002). Accordingly, because of the inadequate record before us, we decline to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       It is clear that the “30th of the month” provision of § 3 of the lease provides that the defendant would be in default of the lease if the plaintiff had not received the rental payment by the thirtieth of the month without the plaintiff having to send notice that the defendant was in default.

       Section three of the original lease states in relevant part: “The monthly rental is $3900, per month for the first year. . . . This rental figure includes a ‘common charge’, which common charge shall be adjusted up or down depending on actual costs, of $2.00 per square foot, including but not limited to taxes, insurance, snow removal, landscaping and normal garbage removal. ...” (Emphasis in original.) Although the lease called for the amount of the common fee to be adjusted depending on actual costs, the fee was never adjusted. From a review of the record, it appears that the rent for unit four was $3100 and the common fee was $800.

       Neither party disputes that the common fee charge was $1600 per month. The only dispute is whether that charge was included in the rental figure specified in the amendment to the lease. We recognize, however, that the $1600 figure does not reflect the amount called for in the lease, $2 per square foot.

       Because we have concluded that the court properly found that the defendant was required to pay $7800 per month for the rent and common charge, we need not address the defendant’s claim that the plaintiff was entitled only to $6200 per month in use and occupancy payments because $7800 was the agreed on monthly rent. The amount of use and occupancy payments is to be the last agreed on rental figure. General Statutes § 47a-26b (a). Further, we need not address the defendant’s claim that the court improperly awarded any use and occupancy payments due to its actual partial eviction because, as we concluded in part II, the record as to an actual partial eviction is inadequate for us to review.
      We also note that the plaintiff, pursuant to General Statutes §§ 33-920 and 33-921, claims in its brief that the defendant “may not maintain a claim against the plaintiff for money damages or for any other relief since it is a foreign corporation not qualified to do business in the state of Connecticut.” “[T]he failure of a foreign corporation to obtain a certificate of authority does not . . . prevent it from defending any proceeding in this state.” (Emphasis added.) General Statutes § 33-921 (e). The defendant never sought to maintain a claim against the plaintiff. Bather, the defendant was defending itself against a claim brought by the plaintiff. Accordingly, the plaintiffs claim that the defendant brought an action against it is without merit.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DOUGLAS YOUNG
    (AC 23482)
    Flynn, West and DiPentima, Js.

      Argued January 6 —
    officially released March 2, 2004

      Maria Cahill, with whom, on the brief, was Ronald F. DeMatteo, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and KimL. McCabe, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Douglas Young, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32, revoking his probation and sentencing him to serve the entire unexecuted portion of his original sentence. On appeal, the defendant claims that the court (1) improperly denied his motion in limine and incorrectly allowed evidence relative to an alleged August 3, 2001 shooting incident to be admitted, and (2) unjustly sentenced him to serve the remainder of his prior sentence. Because we conclude that the court did not abuse its discretion in hearing and admitting evidence of the underlying crime to which the victim of the intimidation was a witness or in imposing the entire unexecuted portion of the original sentence, we affirm the judgment of the trial court.

The chronology of certain events is important to our understanding of the defendant’s claims. On April 14, 2000, the defendant was sentenced after being found guilty of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (b) and carrying a pistol without a permit in violation of General Statutes § 29-35. Only seven months later, on November 15,2000, the defendant, although still in the legal custody of the commissioner of correction, was released from incarceration as part of a transitional supervised community release program. On August 3, 2001, approximately eight and one-half months after his being placed on supervised release, Latasha Williams observed the defendant, known by the nickname “Bolo,” shooting a gun on the street near her friend’s children. She subsequently called the police, and on August 6, 2001, the defendant was arrested. On November 13, 2001, while still being held on pretrial detention in connection with his arrest for the August 3, 2001 shooting, the defendant’s probation commenced on the April 14, 2000 sentence. The defendant was released on bond on December 2, 2001. On February 12, 2002, according to Williams, she encountered the defendant in a store and he asked her “why would [you] go through this, you know, none of this happened, blah, blah, blah.” She went on to say, “Basically, I felt it was a threat.”

The defendant was charged with a violation of probation after he was arrested for intimidation of a witness in violation of General Statutes § 53a-151a. At the violation of probation hearing, the court admitted testimony from Williams and other witnesses regarding the August 3,2001 shooting and the February 12,2002 conversation with Williams. Subsequently, the court found that during his probation, the defendant “[had] held an entire community in custody. At least one person here, if not more, is living in fear . . . .” The court revoked his probation and sentenced him to serve the remaining seven years of his sentence. The defendant now appeals.

I

The defendant first claims that the court improperly denied his motion in limine that sought to preclude the admission of testimony regarding the shooting and incorrectly allowed evidence relative to this incident. The defendant argues that this testimony was inadmissible prior misconduct and was not relevant to the probation violation because this incident occurred while he was still on supervised release but before his probationary period began. Therefore, according to the defendant, this evidence merely demonstrated prior misconduct, which was more prejudicial than probative. The defendant argues that he was denied his right to a fair hearing because without this information, it was likely that a violation of probation would not have been found or that his probation would not have been revoked. We do not agree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [defendant] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn. App. 223, 227, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002); see also State v. Ferraiuolo, 80 Conn. App. 521, 534-35, 835 A.2d 1041 (2003).

The defendant argues that the testimony regarding the shooting incident was inadmissible evidence of prior misconduct. “[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused.” (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 392, 796 A.2d 1191 (2002). However, it may be admissible for other purposes, such as to prove knowledge, intent or motive. Id. “To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) State v. Fernandez, 76 Conn. App. 183, 187, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).

The testimony regarding the shooting incident was extremely relevant and material. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [Ejvidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 679-80, 830 A.2d 193 (2003).

In this case, the shooting incident and the witness intimidation were not two unrelated incidents, but were integrally intertwined. To prove witness intimidation, the state had to establish that the person charged believed that an official proceeding was pending or about to be instituted against him and that such person used, attempted to use or threatened the use of physical force against a witness. See General Statutes § 53a-151a. To prove that the defendant believed that an official proceeding was possibly pending and that the person claiming intimidation had observed this shooting crime and was in fact a witness, the state was required to establish the defendant’s knowledge of the alleged crime. The testimony regarding this crime also was necessary to inform the court of the defendant’s motive for the criminal behavior by which he had violated the terms and conditions of his probation. The court could not separate the two incidents, and in fact, it was not required to do so. The testimony regarding the shooting incident was sufficiently relevant to be admissible.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the [fact finder].” (Internal quotation marks omitted.) State v. Ciccio, 77 Conn. App. 368, 386-87, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003).

The evidentiary standard for probation violation proceedings is broad. We held in State v. Russell, 58 Conn. App. 275, 280-81, 752 A.2d 59 (2000), that the court “may also consider the types of information properly considered at an original sentencing hearing because a revocation hearing is merely a reconvention of the original sentencing hearing. . . . The court may, therefore, consider hearsay information, evidence of crimes for which the defendant was indicted but neither tried nor convicted, evidence of crimes for which the defendant was acquitted, and evidence of indictments or informations that were dismissed.” (Internal quotation marks omitted.) Id.

The defendant concedes that the testimony regarding the alleged shooting was probative, but makes the argument that the testimony was more prejudicial than probative because without this evidence, the only portion of the witness’ testimony the state could have offered was that she felt threatened by the defendant. Therefore, he argues that the court must have based its ruling primarily on the facts of the alleged shooting, which occurred before the period of probation began. We find this argument meritless. Information regarding the alleged shooting was necessary for the adjudication of the charged probation violation. That information pertained to the defendant’s motive to intimidate the witness and to induce her to withhold her testimony as well as to his knowledge of possible criminal prosecution. It established that the victim was actually a witness to sparks coming from the defendant’s gun, accompanied by the sound of gunfire on August 3,2001, and her reasons for feeling intimidated. This was not a trial to the jury, but rather a hearing before the court where prejudice was unlikely. See State v. Hoskie, 74 Conn. App. 663, 669, 813 A.2d 136, cert. denied, 263 Conn. 904, 819 A.2d 837 (2003). The February 12, 2002 incident was inextricably connected to the August 3, 2001 shooting. The court did not abuse its discretion in denying the motion in limine and allowing evidence regarding the shooting incident.

II

We next turn to the defendant’s claim that the court unjustly sentenced him to serve the remainder of his prior sentence. We do not agree.

Under § 53a-32, once the court determines that a violation of a condition of probation has been established, it proceeds to determine whether the defendant’s probationary status should be revoked. State v. Jones, 67 Conn. App. 25, 28, 787 A.2d 43 (2001). The court is vested with broad discretion in determining, on the basis of the entire record, whether the sentence of probation should continue or be revoked, and the court may require the defendant to serve the sentence imposed or impose a lesser sentence. Id. An abuse of discretion standard is applied when reviewing a court’s revocation of probation and imposition of a sentence. Id. Every reasonable presumption is given in favor of the court’s ruling, and reversal is required only when the abuse of discretion is manifest or an injustice has clearly been done. Id., 28-29. When determining whether to revoke probation, a court must consider the beneficial purposes of probation. State v. Bordeleau, 72 Conn. App. 33, 41, 804 A.2d 231 (2002). However, the probationer’s interest in liberty and rehabilitation must be balanced against the need to protect the public. Id.

The court heard evidence from the defendant’s probation officer, who testified that the interest and safety of society superseded any value of probation for the defendant. The court also noted that “what the defendant has done here . . . undermines the very sanctity of the courtroom. Intimidation of a witness is an extraordinarily serious matter.” It was within the court’s discretion to impose the remainder of the defendant’s sentence, and we do not find imposition of the entire seven year unexecuted portion of the sentence unjust, excessive or an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the court imposed a seven year sentence on the defendant as exemplified in the signed judgment and not the eight years that the court mentioned during the sentencing proceeding.

       Judge Iannotti denied the motion in limine after finding that the evidence sought to be excluded was more probative than prejudicial.

       We note that both the state’s brief and the arrest warrant application regarding the witness intimidation charge incorrectly state the date of the defendant’s original sentence. The state’s brief stated that he was sentenced on July 26, 2000, and the warrant application stated that the date was July 26, 2001. The defendant correctly states that the sentence date was April 14, but cites the wrong year. The correct date is April 14, 2000.


author: FOTI, J.

text:
    JENNIFER SNYDER v. BARBARA SELDIN ET AL.
    (AC 23165)
    Foti, Schaller and McLachlan, Js.

      Argued December 4, 2003 —
    officially released March 2, 2004

      Johnpatrick C. O’Brien, for the appellant (plaintiff).

      Karen L. Karpie, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

In this negligence action, the plaintiff, Jennifer Snyder, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendants Barbara Seldin and Lawrence Seldin. On appeal, the plaintiff claims that the defendant’s motion should not have been granted because the court improperly determined that New York workers’ compensation law was applicable to the claim. We disagree with the plaintiff and affirm the judgment of the trial court.

The following facts were stipulated to by the parties and are relevant to our disposition of the plaintiffs claim. At the time of the motor vehicle collision at issue, the plaintiff and the defendant were residents of the state of New York and were both employed by Casual Comer Group, Inc. (Casual Comer), which had its corporate headquarters in Enfield. Furthermore, the plaintiff was principally employed at Casual Comer retail clothing stores in New York since she was hired in 1994.

On November 13, 1997, the plaintiff was a passenger in a motor vehicle operated by the defendant and owned by Lawrence Seldin when they were traveling from New York to a meeting at Casual Comer’s corporate headquarters in Connecticut. While traveling on Interstate 95 in Connecticut, the plaintiff and the defendant were involved in a motor vehicle accident. After the accident, the plaintiff received workers’ compensation benefits under New York workers’ compensation law.

On December 28, 1998, the plaintiff filed the present action, claiming that the accident was caused, in part, by the negligence of the defendant. In her amended answer filed on March 30, 1999, the defendant denied the negligence allegations and asserted by way of special defense that the plaintiffs claims were barred by New York workers’ compensation law, which does not permit a negligence action for personal injuries against a coemployee when those injuries are sustained during the course of employment. The plaintiff denied the special defense on April 22, 1999.

On August 1, 2000, the defendant filed a motion for summary judgment, claiming that she was immune from liability pursuant to New York’s workers’ compensation law. On January 9, 2002, the court granted the motion for summary judgment, stating that it was relying on the reasons set forth in Szabo v. Feldicsko, Superior Court, judicial district of Stamford-Norwalk, Docket No. 98939 (October 7, 1992) (7 C.S.C.R. 1217). In response to the plaintiffs motion for articulation, filed July 10, 2002, the court stated that “[considering the factors set forth in such cases as Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), and O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986), as well as 1 Restatement (Second), Conflict of Laws § 145 (1971), referred to therein . . . the employment relationship and the relationship of the parties was centered in the state of New York and . . . the justified expectations of the parties is likewise related to New York law.” This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion for summary judgment because New York workers’ compensation law, which would preclude the plaintiff from bringing her action, should not have been applied. Additional facts and procedural history relevant to the plaintiffs claim will be set forth as necessary.

“Our standard of review of a trial court’s granting of summary judgment is well established. Pursuant to Practice Book § 17-49, 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.” (Internal quotation marks omitted.) Board of Education v. Naugatuck, 70 Conn. App. 358, 362, 800 A.2d 517, cert. granted on other grounds, 261 Conn. 917, 806 A.2d 1053 (2002). Because the parties have stipulated to the relevant facts, “our review is plenary and we must determine whether the trial court’s conclusions of law are legally and logically correct and find support in the stipulated facts.” (Internal quotation marks omitted.) Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999).

The choice of law principles applicable to third party tort actions in connection with a workers’ compensation claim have been set forth by our Supreme Court in Simaitis v. Flood, supra, 182 Conn. 24, and followed by this court in Pimental v. Cherne Industries, Inc., 46 Conn. App. 142, 698 A.2d 361, cert. denied, 243 Conn. 922, 701 A.2d 343 (1997). In determining whether New York workers’ compensation law can be applied, we must first undertake an interests analysis. See Simaitis v. Flood, supra, 31-32. Under that approach, we must look at the legitimate interests each state has in the application of its laws. See id.

In the present case, the plaintiff received workers’ compensation benefits under New York law. New York’s interest in compensating an injured employee, a New York resident, while precluding her from bringing a negligence action against her coemployee, who also is a New York resident, for injuries sustained in the course of employment, is clear and legitimate. New York’s interest further lies in the fact that the plaintiffs employment relationship with Casual Comer began and has always existed in New York, and that the plaintiff has traveled to Connecticut for business only twice since being hired by Casual Comer in 1994. New York, therefore, has a substantial interest in having its laws applied.

The plaintiff argues, however, that Connecticut’s interest lies in the fact that the injury occurred within its borders and on its highways. Although the accident did occur in Connecticut, our Supreme Court has expressly adopted an interests analysis over the place of injury rule, or lex loci delicti, in conflict of laws cases such as this. See id., 31. As a result, although the place where the injury occurred might be one factor to consider, it is not dispositive of the issue and clearly does not outweigh New York’s interests.

The plaintiff further argues that Connecticut’s interest lies in the fact that Casual Comer had its headquarters in Connecticut. Although the location of the headquarters is one factor to consider, we cannot go as far as to say that this alone gives Connecticut the greater interest under the facts presented. Although it might be true that Connecticut is the center of Casual Comer’s corporate operations, it does not necessarily follow that it is the center of the parties’ relationship with Casual Comer because the plaintiff was principally employed in New York and the parties were both New York residents. Given the facts presented, the parties clearly had an expectation that they would be entitled to the rights, privileges and immunities of New York law. Consequently, because New York has the greater interest, we conclude that it was proper to apply New York law.

“Just as our Supreme Court did in Simaitis v. Flood, supra, 182 Conn. 24, we, too, look beyond an interest analysis and examine the Restatement (Second) of Conflict of Laws and Professor [Arthur] Larson’s treatise on workers’ compensation; 1 Restatement (Second), [supra, § 181]; 4 A. Larson, Workers’ Compensation Law (1997) § 87.40, pp. 16-84 through 16-95; which suggest approaches that lead to the same result.” Pimental v. Cherne Industries, Inc., supra, 46 Conn. App. 146.

“The Restatement provides that: ‘A State of the United States may consistently with the requirements of due process award relief [not merely compensation] to a person under its workmen’s compensation statute, if (a) the person is injured in the State, or (b) the employment is principally located in the State, or (c) the employer supervised the employee’s activities from a place of business in the State, or (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen’s compensation under the rules of §§ 187-188 and 196, or (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen’s compensation act of the State, or (1) the State has some other reasonable relationship to the occurrence, the parties and the employment.’ Restatement (Second), [supra, § 181].” Simaitis v. Flood, supra, 182 Conn. 33. That inquiry, therefore, involves determining whether Connecticut can constitutionally apply New York law. On the facts of this case, New York law clearly is available under subsections (b), (c) and (f) of the Restatement.

Last, “[according to Professor Larson, the applicable law in a workers’ compensation case is the law of the place of the employment relation, because ‘the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the light to receive and the obligation to pay compensation.’ 4 Larson, supra, § 87.40, p. 16-84.” Simaitis v. Flood, supra, 182 Conn. 34. Here, although Casual Corner had its corporate headquarters in Connecticut, the employment relation clearly existed in New York, which was where the parties lived and where the plaintiff principally was employed.

For all of the foregoing reasons, we conclude that the court was correct in applying New York law and, because New York law specifically precludes the plaintiff from bringing a negligence action against the defendant, the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lawrence Seldin also was named as a defendant under a theory of vicarious liability as the owner of the vehicle that was driven by Barbara Seldin in the motor vehicle collision at issue. Although we will use the term “defendant” to refer to Barbara Seldin only, our holding applies to Lawrence Seldin as well.

       Gerard Johns, R.J. Guerrera, Inc., and Casual Comer Group, Inc., also were named as defendants. The claim against Gerard Johns and R. J. Guerrera, Inc., is pending and is not involved in this appeal. The claim against Casual Comer Group, Inc., was withdrawn by the plaintiff.

       In October, 1997, the plaintiff worked out of a Casual Comer store in Hicksville, New York, and the defendant was her immediate supervisor.

       The plaintiff traveled to Connecticut for business only one other time since she was hired at Casual Comer in 1994.

       New York Workers’ Compensation Law § 29 (6) (McKinney 1997) provides in relevant part: “The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured or killed by the negligence or wrong of another in the same employ . . . .” Connecticut law, however, would not preclude the plaintiff from bringing such an action. See General Statutes § 31-293a.

       Although the plaintiff denied the special defense, she concedes in her appellate brief that under New York’s workers’ compensation law, she is “prohibited from bringing an action against a coemployee for personal injuries received in the course of her employment.”

       The defendant further claimed that Lawrence Seldin, who was not employed by Casual Comer, was also immune from liability because his liability, if any, was vicarious as the owner of the vehicle that was driven by Barbara Seldin in the accident.

       The plaintiff also claims that there is an inadequate record because the court did not issue a written memorandum of decision. We note that it is the appellant’s duty to famish this court, with an adequate record. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co.,
        254 Conn. 387, 394, 757 A.2d 1074 (2000). Consequently, if the plaintiff believed that the court did not articulate its decision adequately, she should have sought a further articulation or rectification of the record as provided for by Practice Book § 66-5. In this case, however, where the facts are not in dispute and our review is plenary, the precise legal analysis undertaken by the court is not critical to our consideration of the issue on appeal. See id., 395-96.

       The plaintiff received paychecks from Casual Comer’s headquarters in Connecticut, had contact with it once per month for payroll and purchasing issues, once per week for benefit issues and also received various memoranda from the headquarters about Casual Comer’s financial operations. Such insignificant contacts, however, when viewed in light of the fact that the parties were residents of New York and the plaintiff was principally employed there, are not enough to conclude that Connecticut has the greater interest.

       The plaintiff also argues that her employment contract with Casual Comers was based in Connecticut, thereby making Connecticut the center of the employment relationship. There are, however, no facts in the record indicating where the employment contract was created and which state’s law governs the contract.

       New York law might also be available under subsection (d) and (e) on a showing of additional supporting facts.


author: DiPENTIMA, J.

text:
    INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 361 v. TOWN OF NEW MILFORD
    (AC 23778)
    Dranginis, DiPentima and Hennessy, Js.
    Argued December 2, 2003 —
    officially released March 2, 2004

      John M. Walsh, Jr., for the appellant (plaintiff).

      Michael R. Brandt, with whom, on the brief, was David A. Ryan, Jr., for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, International Brotherhood of Police Officers, Local 361, appeals from the judgment of the trial court denying its application to vacate an arbitration award. The plaintiff claims that the court improperly concluded that (1) the award of the arbitration panel was final and definite with regard to the rights of the parties, (2) the award of the arbitration panel did not violate the public policy prohibiting discrimination based on mental disability and (3) the request of the defendant town of New Milford for the disclosure of all medical records regarding the diagnosis and treatment of its employee did not violate public policy regarding invasion of privacy. We affirm the judgment of the trial court.

The pertinent facts and procedural history are as follows. The plaintiff entered into a labor agreement with the defendant for the terms and conditions of police services between July 1,1995, and June 30,1997. The bargaining agreement between the parties included a procedure for resolution of disputes through arbitration. On May 21, 1987, the New Milford police department hired Gilmer Thibeault as a patrol officer, and he was a member of the plaintiff union throughout his employment. In February and March, 1997, Thibeault became depressed and was unable to function in his job. From approximately March 4 to May 8, 1997, he was treated at Charlotte Hungerford Hospital in Torrin-gton for depression and anger problems. Throughout that time, he was on paid sick leave. On May 6, 1997, the defendant notified Thibeault that he was being relieved of his duties as a police officer and that he would remain on paid medical leave until sometime in June, 1997, when he would be required to undergo a fitness for duty evaluation before returning to active duty.

On June 10, 1997, Thibeault presented himself for work with a certificate from his physician stating that he had been treated for depression and that he was able to return to work. The defendant sent him home. The defendant then notified Thibeault’s attorney that it was necessary for Thibeault to provide medical records to the defendant’s physician stating the diagnosis and treatment, and to make an appointment for an examination in accordance with the May 6, 1997 notification. Thibeault failed to provide the records or to submit to the required examination.

On June 23, 1997, the defendant placed Thibeault on an unpaid leave of absence. On June 28,1997, the plaintiff filed a grievance contesting the defendant’s decision on the ground that the defendant did not have just cause to suspend Thibeault without pay indefinitely, in violation of the collective bargaining agreement. The grievance was denied at each step in the grievance procedure. The case was then submitted to the state board of mediation and arbitration (panel). The following question was submitted to the panel: “Did the [defendant] have just cause to indefinitely suspend the grievant under the [collective bargaining agreement]? If not, what shall the remedy be?” On February 20,2001, the arbitration panel issued a written award denying the grievance on the ground that the defendant had just cause to suspend Thibeault indefinitely. The plaintiff then filed an application in the Superior Court to vacate the arbitration award. After the court rendered judgment denying the plaintiffs application, this appeal followed.

Before reaching the claims on appeal, we acknowledge that the policy behind arbitration compels a deferential standard of review of arbitration awards. “[T]he law in this state takes a strongly affirmative view of consensual arbitration. . . . Arbitration is a favored method to prevent litigation, promote tranquility and expedite the equitable settlement of disputes. ... As a consequence of our approval of arbitral proceedings, our courts generally have deferred to the award that the arbitrator found to be appropriate. . . . The scope of review for arbitration awards is exceedingly narrow. . . . Additionally, every reasonable inference is to be made in favor of the arbitral award and of the arbitrator’s decisions. . . .

“Courts allow and encourage broad discretion for arbitrators. Awards resulting from erroneous interpretations of the agreement or the law generally will not be vacated where the submissions are unrestricted. With unrestricted submissions, as here, arbitrators are not required to resolve the issues presented according to the law, and courts may not review the evidence that the arbitrators used as the basis for their awards. . . .

“Despite the wide berth given to arbitrators and their powers of dispute resolution, courts recognize three grounds for vacating arbitration awards. ... As a routine matter, courts review de novo the question of whether any of those exceptions apply to a given award. . . . The first ground for vacating an award is when the arbitrator has ruled on the constitutionality of a statute. . . . The second acknowledged ground is when the award violates clear public policy. . . . Those grounds for vacatur are denominated as common-law grounds and are deemed to be independent sources of the power of judicial review. . . .

“The third recognized ground for vacating an arbitration award is that the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Citations omitted; internal quotation marks omitted.) Rocky Hill Teachers’ Assn. v. Board of Education, 72 Conn. App. 274, 278-79, 804 A.2d 999, cert. denied, 262 Conn. 907, 810 A.2d 272 (2002).

I

The plaintiff first claims that the court improperly concluded that the award of the arbitration panel was final and definite with regard to the rights of the parties. Specifically, the plaintiff argues that the arbitration award failed to address Thibeault’s employment status with the police department and was therefore open-ended, creating the possibility of further litigation in contravention of § 52-418 (a) (4). Because the submission was unrestricted and the issue submitted by the plaintiff was the same limited issue framed and answered by the panel, we disagree.

“In assessing whether an arbitrator has exceeded his or her powers, the basic test has become the comparison of the award with the submission to determine whether the award conforms to the submission. . . . Conformity with § 52-418 also requires that the award meet the minimum requirements of being mutual, final and definite. [A]n award must be final as to the matters submitted so that the rights and obligations of the parties maybe definitely fixed.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 280.

Further, if the submission is unrestricted, the court’s review is significantly limited. “Under an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . . The resulting award can be reviewed, however, to determine if the award conforms to the submission. . . . Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. ... It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results. . . . The significance, therefore, of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.” (Citations omitted; internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 110, 779 A.2d 737 (2001).

In the present case, the plaintiff concedes that the submission was unrestricted and that the arbitration award conformed to the submission. The only remaining question, therefore, is whether the award is final as to the matters submitted. The issue submitted to the panel was: “Did the [defendant] have just cause to indefinitely suspend the grievant under the [collective bargaining agreement]? If not, what shall the remedy be?” The panel concluded that the defendant had demonstrated just cause. The plaintiff argues, however, that the court improperly concluded that the panel would have exceeded its authority if it had addressed the length of suspension, the termination date of the suspension and the status of Thibeault’s employment. We disagree.

The plaintiff relies on State v. AFSCME, Council 4, Local 1565, 49 Conn. App. 33, 713 A.2d 869 (1998), aff'd, 249 Conn. 474, 732 A.2d 762 (1999), for the proposition that in a case in which an arbitration award fails to state the exact location of the reinstatement of an employee, the remedy is open to negotiation and the award is not definite. The court held, however, that “this portion of the award did not conform to the submission, which required that the arbitrator provide a specific remedy upon a finding that the grievant was terminated without just cause.” Id., 37. Such is not the case here, where it is conceded that the award conformed to the submission. The plaintiff also relies on Rocky Hill Teacher’s Assn. v. Board of Education, supra, 72 Conn. App. 274, in which the arbitrator answered in the affirmative the question submitted: “Did the Board violate the contract [agreement] when it included the dental premium costs in its calculation of premium cost share dollar amounts as provided for in [the agreement].” (Internal quotation marks omitted.) Id., 277. The arbitrator ordered the parties “to negotiate the issue of whether to include the dental costs within the formula to determine teacher contributions toward medical/ health premiums”; id.; and this court determined that such an award that was open to further negotiation was not mutual, final and definite, as is required by § 52-418. Id., 281. The court cited AFSCME, Council 4, Local 1565, which held that “[b]ecause the remedy remained open to negotiation at the time the award was rendered, and because the award left a specific remedy to the predilection of one of the parties, it was not definite and the trial court properly vacated the award.” (Emphasis added; internal quotation marks omitted.) Id. Here, the court simply affirmed the panel’s determination that the defendant had just cause to suspend the grievant indefinitely under the collective bargaining agreement. The award is thus final as to the matter submitted.

As previously stated, with an unrestricted submission, the court’s review of the award is limited to a determination of whether it conforms to the submission. We agree with the court’s determination that the award conformed to the submission. Accordingly, the plaintiffs claim fails.

II

The plaintiff next claims that the court improperly concluded that the award of the arbitration panel did not violate the public policy prohibiting discrimination on the basis of mental disability. We disagree.

“The proper standard of review for examining whether an arbitral decision violates a clear public policy was recently articulated in Schoonmaker v. Cummings & Lockwood of Connecticut, P. C., 252 Conn. 416, 429, 747 A.2d 1017 (2000), in which our Supreme Court stated: Where there is no clearly established public policy against which to measure the propriety of the arbitrator’s award, there is no public policy ground for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy. We conclude that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, color-able basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793, 796-97, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000).

“We interpret Schoonmaker to require a two-step analysis in cases such as this one in which a party raises the issue of a violation of public policy in a arbitral award. First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy.” Id., 797.

The plaintiff argues that the court improperly concluded that the award of the arbitration panel did not contravene the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., which prohibit discrimination based on mental disability. Specifically, the plaintiff argues that the decision of the arbitration panel was biased.

At the outset, we must determine whether a clear public policy is at issue in this case. “A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Citation omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 797-98.

It is axiomatic that Connecticut adheres to a public policy prohibiting discrimination on the basis of disabilities. Such a policy is embodied in General Statutes § 46a-60 (a) (1), which prohibits discrimination “because of [an] individual’s . . . present or past history of mental disability ... or physical disability . . . .” See also 42 U.S.C. §§ 12101 through 12117.

In light of that clear public policy, we turn to the question of whether the arbitration award comports with that policy. Taking into consideration the narrow scope of the public policy limitation of arbitral authority, the plaintiff had the burden of clearly demonstrating illegality or conflict with this established public policy. See New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 417, 544 A.2d 186 (1988).

The arbitration panel concluded that “to return the grievant to work when the grievant’s own doctors caution that the grievant would require close supervision and future treatment as a condition to his return to work does not give the grievant a clear and convincing return to work pass.” The plaintiff argues that the arbitration panel’s statement in its award reflected bias in that it is illustrative of the stereotypic assumptions encountered by those who suffer from mental illness. That argument misstates the findings of the arbitration panel and the court.

In a letter to the grievant dated May 6,1997, the chief of police stated that prior to returning to duty, Thibeault “would be required to undergo an evaluation concerning his fitness for duty,” an evaluation that the defendant had the right to request under relevant provisions of the parties’ collective bargaining agreement.

Several physicians who had treated Thibeault expressed concern that his depression would require continued supervision and treatment. The panel properly determined that the defendant had the express and implied authority to require a medical evaluation or a medical record to determine Thibeault’s fitness to return to work. The arbitration panel therefore did not justify Thibeault’s indefinite suspension on the basis of the requirement of further treatment. Rather, Thibeault was indefinitely suspended until he submitted to a fitness for duty examination or permitted the defendant’s physician to review relevant medical records. The plaintiff has failed to meet its burden of demonstrating bias on the part of the arbitration panel or discrimination on the part of the defendant. Thus, there is no basis for a finding of a violation of the public policy prohibiting discrimination based on mental disability. We conclude that the award was not improper.

Ill

The plaintiffs final claim is that the court improperly concluded that the defendant’s request for the disclosure of all of Thibeault’s medical records regarding his diagnosis and treatment for depression did not violate the public policy against unnecessary invasions of privacy. Because the plaintiff has not demonstrated a clear public policy against which to measure the propriety of the arbitrator’s award, we disagree. See Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 429.

As previously discussed, our scope of review, as set forth in Schoonmaker, is de novo. Id. The plaintiff argues that the scope of the defendant’s request for disclosure of Thibeault’s medical records was unreasonable and overbroad. At the outset, we examine whether there is a clear public policy that restricts the disclosure of medical records to an employer. See id.

The plaintiff relies on General Statutes (Rev. to 1997) § 1-19 (b), now § 1-210 (b), regarding the public disclosure of medical records. Section 1-19 (b), now § 1-210 (b), provides in relevant part: “Nothing in [the Freedom of Information Act] shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of privacy . . . .” Although that statute establishes a clear public policy favoring the privacy rights of public employees regarding the public disclosure of medical records, we agree with the court that “the [plaintiff] has failed in its burden of proving that there is an explicit public policy that is well defined and dominant in favor of shielding from an employer medical records of treatment for a condition which has disabled an employee for several weeks.” We therefore do not exercise de novo review of whether the award violated Thibeault’s privacy rights. Under the deferential scope of review this court must apply, we find that the trial court properly rejected that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall malee an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Section 5.01 of the management rights provision of the collective bargaining agreement provides that the defendant has the right to prescribe rules regarding the maintenance of discipline and efficiency of its employees. Moreover, § 2.1.8 of the standard of conduct in the collective bargaining agreement provides that “all sworn members of the department shall . . . submit to a physical and/or psychological exam at any time, at the expense of the Department, when so ordered by the Chief of Police.” We note that those provisions reflect the competing public policy of ensuring the fitness and emotional stability of armed peace officers.

       In light of our resolution of that claim, we reject the alternate grounds to affirm raised by the defendant that the court improperly accorded the claim de novo review.

       The court stated that “the [plaintiff] never made a public policy argument to the panel that the request for records violated Thibeault’s privacy rights.” A review of the record shows that the argument, though sparse, was indeed raised by the plaintiff. The grievant testified before the panel that he “was willing to relinquish whatever medical records were required for this illness, ” but that he objected to providing a copy of his entire medical histoiy because “other records within my medical history were private issues between my physician and I.” Moreover, in a posthearing brief, the plaintiff argued that “[t]he [defendant] had failed to look into Officer Thibeault’s concerns regarding a wholesale disclosure of medical records to determine if a modification of the request was appropriate.” The plaintiff thus presented the question of whether the [defendant] had just cause to “refuse ... to acknowledge Officer Thibeault’s request for a more limited release of medical records so as to avoid disclosure of private information.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. TERRANCE ELSEY
    (AC 22989)
    Schaller, West and Mihalakos, Js.
    Argued November 17, 2003 —
    officially released March 2, 2004

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

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis J. Luba, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Terrance Elsey, appeals from the judgment of conviction, rendered after a juiy trial, of arson in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-lll (a) (1), conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (1), two counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1) and (4), two counts of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1) and (4), and three counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63. On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction, (2) the prosecutor committed prejudicial misconduct in closing arguments, and (3) the defendant’s rights to be free of double jeopardy were violated by the separate sentences for his conviction of the three conspiracy counts. We conclude that there was sufficient evidence, that there was no prosecutorial misconduct and that the defendant’s rights to be free of double jeopardy were violated. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts were adduced at trial. On January 12, 2000, three people were residing in a house in New Britain. At about 12:30 a.m., the occupants heard numerous gunshots. Several bullets entered the house through the windows and the walls. Some of the bullets entered a living room, where one of the victims, a young man, was watching television. The young man dove to the floor and told the other victims to call the police. One of the other victims called the New Britain police.

The sound of the gunshots alarmed other people in the neighborhood and caused them to look out the windows in their homes. A woman living next door to the victims’ house looked out her window and observed a small fire burning on the side of the victims’ house. The fire, located at the ground level, was approximately five feet wide and one foot tall. It died out on its own within a few minutes but caused minor damage to the house. In addition to surprising the woman, the gunshots startled two men in the house across the street from the victims’ house. The two men saw two or three unidentified men near the victims’ house and called the police. The men in the house then observed the unidentified men run to a black Pontiac Grand Am car. Both of the men in the house noted that the unidentified man who got into the backseat of the car was wearing a flannel shirt with a white pattern. The car left the scene, and the men in the house were unable to determine if there was a license plate on the car.

Minutes after the gunfire, a Newington police officer saw a black Pontiac Grand Am car without a rear license plate heading northbound on the Berlin Turnpike. The officer stopped the car and noticed that there were three men inside. The man in the rear seat was wearing eyeglasses and a white or light colored shirt. The officer was aware, via a Newington police broadcast, of the earlier shooting in New Britain. The officer spoke to the driver of the car, who claimed that he had no identification. He was able to provide only the rental agreement for the car. The driver explained that he had just come from the New Britain area. The officer suspected that the men in the car were associated with the shootings and fire, but before the officer could conduct further investigation, the car sped off. The officer gave chase but was unable to catch up to the car. Two other police cruisers and one state police trooper joined the chase.

The chase, which continued with the police vehicles reaching speeds of 100 miles per hour, ended abruptly when the Pontiac smashed into a concrete wall after turning off an exit in Hartford. The state police trooper was the first to reach the scene and witnessed two men, who had been sitting in the front seats, running away. The man in the backseat, wearing a light colored shirt, left the car and, ignoring the trooper’s commands, ran from the scene of the accident. Other local police and state police trooper units arrived on the scene, but despite the presence of a K-9 unit, were unable to locate the three men. The police brought to the accident scene the two men who had witnessed the events at the victims’ house. Both men stated that the car at the scene of the accident was the same black Pontiac Grand Am that the unidentified men had entered outside the victims’ house.

The police then turned their attention to the car. They learned that Robert Lane had rented the car. Robert Lane is the father of Ahmad Lane, a friend of Ronald Hughes, the defendant’s cousin. Inside the car, the police found a pair of wire rimmed eyeglasses, a cell phone registered to the defendant and another cell phone registered to Hughes. The police also discovered latent fingerprints on the car. The latent fingerprints matched the defendant’s known fingerprints for his thumb, and index and middle fingers. In addition, the gasoline cap of the car was missing.

Further investigation of the cell phones revealed that there were at least eight calls made between the defendant’s cell phone and Hughes’ cell phone between 9:30 and 10:30 p.m. earlier that evening. In addition, there was a call from the defendant’s cell phone to a female friend of the defendant at 11:55 p.m., approximately thirty-five minutes before the crimes at issue. The defendant’s cell phone account was active, but it was deactivated the day after the incident.

The police also investigated the scene at the victims’ house. Near the scene of the fire, the police found a cigarette lighter and a champagne bottle with a burned label and gasoline inside. The police also found five nine millimeter shells, all from the same gun, and a .22 caliber bullet. Inside the victims’ house, the police recovered three nine millimeter bullets and two .38 caliber bullets. There were eight bullet holes in the house, which, along with the presence of the two different caliber bullets, led the police to believe that at least two different guns were involved in the shooting.

Twelve days after the shooting, the police searched the defendant’s house. The police recovered various paraphernalia related to the defendant’s cell phone that was found in the car, a new cell phone, an unfired .22 caliber round, a photograph of the defendant wearing wire rimmed eyeglasses, an empty eyeglass case that fit the recovered eyeglasses, a pair of contact lenses and a blank application for a pistol permit. Notably, there was not another pair of eyeglasses in the defendant’s apartment. The .22 caliber round was the same as the one recovered at the scene of the crimes. A master optician compared the wire rim eyeglasses recovered at the scene of the car crash with the defendant’s contact lenses. The master optician testified that “[t]hese particular eyeglass lenses [that were found in the car] do match these contact lenses [that were found in the defendant’s apartment]. So, these eyeglasses would work for whoever wears these contact lenses.” When asked, “Did anyone other than the person wearing these contact lenses wear these glasses?” the master optician replied, “That would be unlikely because it’s a very strong prescription and because they match at that certain level of strength.”

The police also learned that the defendant’s family and the victims had a previous relationship. A son of one of the victims had lent his car to a friend. That friend used the victim’s car to rob Hughes, the defendant’s cousin. The next day, the defendant’s brother said to a son of one of the victims, “I can’t get you, so I know where your mom lives and I’m going there tonight.” The son testified that the defendant’s brother knew where the mother resided. The defendant was subsequently arrested, tried and convicted. This appeal followed.

I

The defendant claims that there was insufficient evidence to support his conviction. The state argues that all of the evidence, as previously set forth, allowed the jury to make a series of reasonable inferences that led to the conclusion that the defendant was guilty.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Bermudez, 79 Conn. App. 275, 280, 830 A.2d 288, cert. granted on other grounds, 266 Conn. 921, 835 A.2d 61 (2003).

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Charles, 78 Conn. App. 125, 139, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003); see also State v. Haggood, 36 Conn. App. 753, 761, 653 A.2d 216 (jury may draw inferences from facts gleaned from other inferences), cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

“Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Emphasis added; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d 224 (2003); see also State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001) (applying standard in sufficiency of evidence claim).

It is easiest to illustrate the chain of inferences the jury reasonably could have made by working backward from the scene of the crash to the events at the victim’s house. The jury reasonably could have found that the defendant was in the car at the time of the crash. The defendant’s cell phone was found in the car. It had been used to call the defendant’s female friend within thirty-five minutes of the crime. It was also used to call Hughes several times that evening. Further, the defendant took steps to deactivate the phone the next day, supporting the inference that he was aware that he recently had lost it. Eyeglasses matching the strong prescription for the defendant were also found in the car. Further, the eyeglasses found in the car were similar to the ones worn by the defendant in the photograph recovered at his apartment. In addition, the defendant’s fingerprints were found on the car, which was a rental car. The jury reasonably could have inferred that because the car was rented, the defendant did not have the chance to leave his fingexprints and various personal items in the car before the incident. That fact, in combination with the timing of the phone calls, supported the inference that the defendant was in the car at the time of the crash.

The jury also reasonably could have found that the car that crashed in Hartford was the same car that was at the scene of the crimes in New Britain. The two men who witnessed the incident at the victims’ house identified the car at the crash scene as being the same one they had seen in New Britain. Further, the jury heard evidence that there was an unidentified man with a white or light colored shirt. That unidentified man was seen at the victims’ house, at the first traffic stop by the Newington police officer and at the scene of the car crash.

As the jury could have inferred that the defendant was at the victims’ house, through a combination of the evidence previously set forth, it could have inferred that he was guilty of the crimes. The jury could have based those inferences on the following facts: The defendant was found in possession of a bullet of the same caliber that was found at the victims’ house; there were at least two guns used in the shooting; the defendant and the others fled the scene of the crimes, which was indicative of consciousness of guilt; see State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001) (“ ‘[fjlight, when unexplained, tends to prove a consciousness of guilt’ ”); and the defendant had a motive, which was to seek revenge for the robbery of his cousin. Further, although there was less evidence to link the defendant to the arson, the jury could have reasonably inferred that he was “fully aware of the unlawful purpose of [his] companions and . . . [i]n the event of resistance, the [defendant was] ready to render assistance to those actually committing the [crime] and to aid them in making a speedy escape.” State v. Pundy, 147 Conn. 7, 12, 156 A.2d 193 (1959). In addition, the jury could have based at least part of its decision regarding the conspiracy charges on the defendant’s decision to come to the scene of the crime with the coconspirators, stay at the scene while the crimes were committed and leave the scene with the coconspirators. See State v. Smith, 15 Conn. App. 122, 126, 543 A.2d 301, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988); see also State v. Fuller, 58 Conn. App. 567, 575, 754 A.2d 207 (jury may infer intent from failure to summon assistance), cert. denied, 254 Conn. 918, 759 A.2d 1026 (2000). Thus, the jury could have found beyond a reasonable doubt from the inferences reasonably drawn from the evidence that the defendant was guilty of the charged crimes.

Further, as the defendant was charged as an accessory to the arson, the jury reasonably could have inferred that the other unidentified men had taken part in the arson. See General Statutes § 53a-8. It was reasonable to infer that the group that had shot at the house would also try to inflict some other type of damage. Further, the jury heard evidence that the gasoline cap on the car was missing and that the champagne bottle, which was recovered near the scene of the fire, contained gasoline. As the jury could have inferred that the same car had been at the crash and at the victims’ house, the jury could then properly base a second inference, that the shooter had committed the arson, on the absence of the gasoline cap and the presence of gasoline in the champagne bottle. See State v. Haggood, supra, 36 Conn. App. 761.

After construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found the defendant guilty beyond a reasonable doubt.

II

The defendant also claims that the prosecutor committed prejudicial misconduct during closing arguments. The defendant argues that “[although no single statement of the prosecutor by itself constituted misconduct, the cumulative effect denied the defendant a fair trial.” We disagree.

Additional facts are necessary for the resolution of the defendant’s claim. During closing argument, the prosecutor made the following statements: “Mr. Robert Lane, the father of Ahmad Lane, who was one of the friends of [the defendant], rented the motor vehicle”; “[b]ut this car is found with the gas door opened. Why? Think about that. Link it back up to [the victims’ house]. The bottle full of gasoline found at the scene”; and, “Look at the glasses. Then, it’s just a coincidence that contacts were seized from his house. Again, no glasses, but contacts were seized from his house when the master optician stated that only the person that wears these contacts could wear these glasses.” The defendant objected to the first statement, but not to the second or third statements. We will address the first statement separately from the second and third statements.

A

When reviewing a claim of prosecutorial misconduct, the threshold issue is whether the actions challenged by the defendant constituted misconduct. “A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Citations omitted; internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 306, 755 A.2d 868 (2000); see also State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003). “In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). “The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial.” (Internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 298, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

If the matters alluded to in the prosecutor’s statement were within the record, or were reasonable inferences drawn therefrom, the statement was not improper. Cf. State v. Singh, 259 Conn. 693, 716 n.22, 793 A.2d 226 (2002) (statement of prosecutor not supported by record held proper if it is matter of “ ‘common public knowledge based on ordinary human experience’ ”).

The prosecutor stated that Ahmad Lane was a friend of the defendant. The evidence on that point came from Wayne Stephens, a relative of the victims. Stephens was familiar with the defendant because they had grown up together and associated with the same people. Stephens was also familiar with Hughes and Ahmad Lane. Stephens testified that Ahmad Lane “hangs with” Hughes. The prosecutor’s statement that the defendant was friendly with Lane was a reasonable inference that was based on the evidence that the defendant and Hughes were close to each other and that Hughes “hangs with” Lane. The term friend is broad, and we will not automatically infer that the prosecutor intended the remark to mean that they were close, personal friends. See Don-nelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (reviewing court should not lightly assume every statement has its most potentially damaging meaning). That statement was a reasonable inference from the evidence. Therefore, it was not improper, and there was no prosecutorial misconduct.

B

The defendant seeks review of the second and third statements under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[W]e have long held that [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); see State v. Rogers, 50 Conn. App. 467, 477, 718 A.2d 985 (“ ‘[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial’ ”), cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); see also State v. Young, 29 Conn. App. 754, 766, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). The second and third comments made by the prosecutor, relating to the quantity of liquid in the champagne bottle and the relationship between the contacts and eyeglasses, were neither blatantly egregious nor were they part of a larger pattern of misconduct. Therefore, we decline to review that part of the defendant’s claim. See State v. Somer-ville, supra, 393 (declining review when remarks by prosecutor were isolated, brief).

Ill

The defendant’s final claim is that his rights to be free of double jeopardy were violated by his separate sentences for the conviction of the three conspiracy counts. The defendant argues that we should remand the case to the trial court with direction to set aside the conviction of two of the three conspiracy counts. The state concedes that the defendant’s rights were violated, but argues that the proper remedy is to remand the case to the trial court with direction to combine the conviction of the three counts and to vacate the sentences on two of them.

“The courts of this state have long held that [t]he gist of the offense of conspiracy is the unlawful combination and not the accomplishment of an objective or objectives, whether lawful or unlawful. . . . Whether the information charges that the combination was formed to accomplish one or many objectives is immaterial. A combination to commit several crimes is a single offence [sic]. . . . No matter how many violations of law may be concerted by the confederates, if the concert takes place at one time, the crime is single.” (Internal quotation marks omitted.) State v. Kitt, 8 Conn. App. 478, 489-90, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986).

The defendant’s suggestion to set aside the conviction on two of the three conspiracy counts is without merit. Our Supreme Court already has explained the appropriate remedy in State v. Howard, 221 Conn. 447, 604 A.2d 1294 (1992). The Howard court stated that “[although the parties agree that a double jeopardy violation has occurred, they disagree about what the appropriate order of remand should be to remedy that violation. The defendant argues that we should remand the case to the trial court with direction that it exercise its discretion to render judgment and sentence on only one conspiracy conviction. The state maintains that the trial court should be directed to combine the two conspiracy convictions and to vacate the sentence for one of them. The only practical difference between these two dispositions is that, under the state’s theory, if the remaining conspiracy conviction were later invalidated upon collateral attack for a reason not affecting the merged conspiracy conviction, that unaffected conviction would be resuscitated and the defendant punished for it. If we were to adopt the defendant’s proposal and the remaining conspiracy conviction were somehow invalidated, no other conviction would remain to be resuscitated, and, therefore, the defendant could not be punished for the conviction previously vacated. We considered this question quite thoroughly in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied. 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), and decided to adopt the approach advocated by the state.” State v. Howard, supra, 462-63. We hold that the defendant’s rights to be free of double jeopardy were -violated and that the appropriate remedy is to remand the case to the trial court with direction to combine the conviction on the three conspiracy counts and to vacate the sentences on two of them.

The judgment is reversed in part and the case is remanded with direction to combine the conspiracy convictions and for resentencing. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Although three different caliber bullets were found at the scene of the crime, only two different caliber bullets were found inside the victims’ house.

       A master optician is an optician who has passed a national test and written a paper relating to optometry. There are six master opticians in Connecticut.

       That usage of the cell phone supports the inference that the defendant was not only In the car, but was in the car at the relevant time. “Jurors do not live in a fishbowl”; State v. Torrence, 37 Conn. App. 482, 486, 657 A.2d 654 (1995); and “[cjommon sense does not take flight at the courthouse door.” State v. Rivera, 74 Conn. App. 129, 138, 810 A.2d 824 (2002). Thus, the jury reasonably could have inferred that it was the defendant himself who had called his female friend.

       The defendant did not offer any evidence that he had previous contact with the car prior to the night of the incident. The defendant did not have the burden of proving himself innocent, of course, but without an alternative explanation for the presence of his fingerprints on a rental car, the jury was left with the state’s theory of the case.

       It is not even clear that the statements were not reasonable extrapolations from the evidence presented, for “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. DeChristoforo, supra, 416 U.S. 647.

       The defendant claims that his rights to be free of double jeopardy under the fifth amendment to the United States constitution and article first, § 9, of the Connecticut constitution were violated. We note that “[ajlthough the Connecticut constitution does not contain a specific provision regarding double jeopardy, the common law rule against double jeopardy has been adopted as necessary to the due process guaranteed by article first, § 8.” State v. Howard, 221 Conn. 447, 461 n.11, 604 A.2d 1294 (1992). We address the defendant’s claim as though it were raised under article first, § 8, rather than under § 9.


author: PER CURIAM.

text:
    BANKERS TRUST COMPANY, TRUSTEE v. RONALD L. PINCIARO ET AL.
    (AC 23403)
    Schaller, Dranginis and DiPentima, Js.
    Submitted on briefs November 21, 2003 —
    officially released March 2, 2004

      Ronald L. Pinciaro, pro se, the appellant (defendant) filed a brief.

      David F. Borrino filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this foreclosure action, the pro se defendant Ronald L. Pinciaro appeals from the trial court’s denial of his motion to reopen the judgment approving the sale of the real property at issue. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. In February, 2001, the plaintiff, Bankers Trust Company, trustee, commenced an action to foreclose a mortgage executed by Ronald L. Pinciaro and Nancy M. Pinciaro that secured a note in the original amount of $255,200. The Pinciaros were defaulted for failure to disclose a defense. On April 2, 2001, the court ordered a foreclosure by sale, scheduling the sale date for June 2, 2001. Subsequent to the filing of various bankruptcy petitions by the defendant, the plaintiff filed and the court granted three motions to reopen the judgment to set new sale dates, ultimately extending the sale date to May 11, 2002. On that date, the premises were sold for $400,000. On May 28, 2002, the court ordered that the sale and deed be approved.

On June 12, 2002, the defendant filed a pleading he titled “Motion to Reargue the Judgment,” addressing the May 28, 2002 judgment. The grounds for the motion were that (1) he was in the -wrong courtroom and was not present at the time the motion for approval of the sale was argued and (2) he had evidence to show that the sale price of $400,000 was too low, and that the proper sale price should have been $545,000. The court denied the defendant’s motion on July 10,2002. On June 18, 2002, the defendant filed a motion to reopen the judgment on the same grounds. On August 5, 2002, that motion was also denied by the court. This appeal followed.

The defendant claims that the court improperly denied his motion to reopen the judgment. We disagree.

In reviewing a court’s ruling on a motion to reopen, we ask only whether the court acted unreasonably or in clear abuse of its discretion. American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 166, 834 A.2d 59 (2003). “When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 299, 794 A.2d 1029 (2002).

On the basis of our review of the record, we conclude that the court did not abuse its discretion.

The judgment is affirmed.

       The other defendants in this action were Nancy M. Pinciaro, Household Realty Corporation, the state department of revenue services, the Internal Revenue Service and Oxford Health Plans, Inc. Only Ronald Pinciaro has appealed. We therefore refer to him in this opinion as the defendant.

       The defendant also claims that the court improperly (1) approved the sale and (2) denied his motion to reargue. We need not address those claims because we conclude that the court was within its discretion in denying his motion to reopen the judgment.

       During the pendency of this appeal, the plaintiff filed a motion to dismiss the appeal as moot, which we denied. The plaintiff later filed a motion with the trial court for a termination of the automatic stay of execution. The motion was denied, but the trial court ordered the defendant to pay for use and occupancy. The defendant filed a motion for articulation or rectification of the court’s order on the motion to terminate the stay. The court articulated that the motion to terminate the stay had been denied to give the defendant an opportunity to pursue the appeal. The court used its equitable powers, however, to rule that the plaintiff was entitled to compensation for reasonable use and occupancy of the premises pending the appeal. It further articulated that the successful bidder, rather than the plaintiff, would be entitled to the issuance of an execution of ejectment if timely use and occupancy payments were not made. The defendant then filed with this court a motion for review of the use and occupancy order, claiming that he should not be obligated to pay use and occupancy. This court granted the motion for review, but denied the relief requested therein.