author: GRUENDEL, J. LAVINE, J.,

text:
    STATE OF CONNECTICUT v. CARLOS MICHAEL RODRIGUEZ
    (AC 32512)
    Gruendel, Lavine and Flynn, Js.

      Argued September 10
    officially released December 18, 2012

      William B. Westcott, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Maureen Omousky, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Carlos Michael Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-60 (a) (1), one count of interfering with a police officer in violation of General Statutes § 53a-167a and one count of carrying a dangerous weapon in violation of General Statutes § 53-206. The defendant claims that (1) the court erred in admitting into evidence a prior statement to police of a state’s witness, (2) the court lacked jurisdiction to modify his sentence and (3) there was insufficient evidence to sustain his conviction of two counts of attempt to commit assault, as charged by the state. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of January 15, 2008, after returning from his day in high school, the defendant, along with Charles Lauture and Kendell Woodley, went to the home of Kevin Whittingham, where Whittingham resided with his mother, Christina Esposito. Shortly after his arrival, the defendant asked Esposito to repay him $20 that she allegedly owed him for drugs he had provided to her on an earlier occasion. Esposito disputed owing the defendant money and refused to pay him, claiming that the drugs he had given her were counterfeit. The two argued over the debt, both yelling and cursing. Whittingham attempted to defuse the argument by telling both the defendant and Esposito to calm down. When Esposito continued her refusal to pay, the defendant drew a knife with a five inch blade from the waist of his pants and demanded the money again. Esposito then fled her apartment via an outside porch that connects to an adjoining apartment. Whittingham told the defendant to put down the knife, but the defendant did not. Instead, the defendant ran from the apartment, chasing Esposito. As he passed Lauture, who was on the porch, Lauture attempted to stop the defendant from continuing his pursuit of Esposito. Lauture moved to restrain the defendant and after a struggle, the defendant slashed Lauture’s torso with the knife. The knife cut through Lauture’s two layers of clothing, causing an abrasion on his chest. The defendant then resumed chasing Esposito.

While the defendant and Lauture scuffled, Esposito sought refuge in the bedroom of a neighboring apartment occupied by Steven Arzu and his family. She ran through Arzu’s apartment, knocking over furniture to create obstacles between her and the defendant. Espos-ito used Arzu’s phone to call 911 for assistance, reporting that a young man was trying to attack her with a knife. The defendant followed Esposito to Arzu’s bedroom, pounding and kicking the door, yelling, “I want my money.” As Esposito held the door closed, the defendant began to stab the door with the knife. Esposito had to continually move her hand to avoid being stabbed by the knife as it pierced the door. The defendant then broke the door in half and entered the bedroom. Esposito backed away from the defendant, toward the bedroom wall, throwing a television on to the floor to block the defendant’s path. As she retreated from the defendant, Esposito fell to the ground and shielded herself from him with a piece of the broken bedroom door.

Meanwhile, several Stamford police officers responded to Esposito’s and Arzu’s 911 calls. Officers Tom Comerford, Steven Perrotta and David Sileo arrived on the scene seconds after Lieutenant Nick Mon-tagnese and Officer Wayne James. Hearing Esposito’s screams, Montagnese immediately ran into the building and up the stairs to Arzu’s apartment, with James following close behind him. As Montagnese entered the apartment, he saw the defendant, holding a knife and screaming, standing at the threshold of the bedroom to which Esposito had fled. Montagnese repeatedly ordered the defendant to drop the knife, but the defendant did not respond. Instead, the defendant continued to focus his attention on Esposito. Montagnese then shoved the defendant in order to get his attention. In response, the defendant turned away from Esposito and began to approach Montagnese with the knife raised above his head. Montagnese backed away from the defendant in order to keep a safe distance between him and the knife, while instructing the defendant to drop the weapon. As he was walking backward away from the defendant, Montagnese tripped and fell, landing on his back. When James, who was standing in a nearby doorway, observed Montagnese begin to fall, making him vulnerable to being stabbed by the defendant, he shot the defendant twice. Montagnese then radioed for paramedic assistance for the defendant. The defendant was taken to the hospital where he received treatment for his gunshot wounds.

On December 1, 2009, the defendant was charged with two counts of attempt to commit assault in the first degree, one count of assault in the second degree, one count of assault on a police officer and one count of carrying a dangerous weapon. After a jury trial, the defendant was convicted of two counts of attempt to commit assault in the second degree, interfering with a police officer and carrying a dangerous weapon. He was acquitted of the charge of assault in the second degree. The court rendered judgment in accordance with the jury’s verdict and imposed a total effective sentence of fourteen years, execution suspended after nine years, followed by three years of probation. This appeal followed.

I

We address first the defendant’s claim that the court improperly admitted Whittingham’s statement to police as part of the state’s case-in-chief. The defendant asserts that this ruling by the court was both a misapplication of evidentiary law and a violation of his sixth amendment right to confrontation under the federal constitution. We disagree on both accounts.

The following additional facts are relevant to this claim. Less than two hours after the incident, Whittin-gham went to the Stamford police department and gave a signed and sworn statement to Officer Angel Gonzalez. The statement included Whittingham’s basic biographical information and recounted the events of the afternoon, including the defendant’s demand for money from Esposito, his drawing a knife from his pants and threatening Esposito with it, his altercation with Lau-ture on the porch and his interaction with Montagnese leading up to James shooting him. Gonzalez typed the statement, after which Whittingham initialed each paragraph to indicate its accuracy.

During the time between the defendant’s arrest and when his case went to trial, Whittingham was convicted of a felony. At the time of trial, when the state wished to call him as a witness, Whittingham was incarcerated and did not wish to testify. The state alerted the court and defense counsel, the day before calling Whittin-gham, that Whittingham would decline to testify. When the state ultimately called Whittingham during its casein-chief, Whittingham took an oath to testify truthfully and went on to state that he did not remember the events from the afternoon of January 15, 2008, nor did he remember making a signed sworn statement to police. Moreover, Whittingham stated repeatedly, to both the state and defense counsel, that since he could not remember any of the events in question from January 16, 2008, then he believed that they did not, in fact, occur. He testified that this lack of memory rendered his statement to police untrue. After the state unsuccessfully attempted to refresh Whittingham’s memory by allowing him to read his statement to police, the court also questioned Whittingham to determine whether he was simply stating that he was unable to remember the events contained in his statement to police or if he was affirmatively stating that they did not happen. Defense counsel conducted a cross-examination and four subsequent recross-examinations of Whittingham. In addition to restating that he had no memory of the relevant incident, in response to defense counsel’s questioning, Whittingham testified that he knew the defendant from school, that the defendant had not threatened him, and that he believed that when he spoke to police immediately following the incident that they had him sign a statement prepared without his involvement. Whittingham also testified specifically that he never saw any conflict occur between the defendant and police, between the defendant and Esposito or between the defendant and Lauture.

The state then called Gonzalez to testify, outside the presence of the jury, about the circumstances surrounding the taking of Whittingham’s statement. Gonzalez testified that he typed the statement as Whittingham relayed his recollection of the afternoon. Gonzalez stated that after he typed the statement, he had Whittin-gham read the statement aloud and asked him to correct any mistakes. As Whittingham read each paragraph, Gonzalez asked him to indicate that it contained no errors by initialing it. Whittingham initialed each paragraph and made no corrections to the statement. Gonzalez also testified regarding the form which accompanies the body of written statements given by both witnesses and suspects. Specifically, he pointed to the oath printed on the form that affirms the truthfulness of the statement annexed to it. Whittingham signed the form containing the oath and Sergeant James Van Allen, a notary public, notarized it.

After Gonzalez testified, the state moved to have Whittingham’s statement admitted into evidence as a prior inconsistent statement. The defendant objected to its admission on the grounds that Whittingham, due to his stated lack of memory, did not demonstrate that he had personal knowledge of the contents of the prior statement, nor could the defendant cross-examine him. The court took a recess to research the issue and consider both parties’ arguments. After reconvening, the court orally issued its decision. It found that Whittin-gham’s statement had “all the indicia of reliability” required by “the evidence code in Connecticut, and under the case law.” The court determined that Whittin-gham’s “testimony was, in effect, a denial of the statements ... as to the substance of [the defendant’s] actions on the date in question. And that, in effect, is not lack of recollection. It is a denial of the accuracy of the statement.” Accordingly, the court admitted, as substantive evidence, Whittingham’s statement to police.

The defendant claims that the court erroneously admitted Whittingham’s prior statement to police in contradiction of the evidentiary standards established in State v. Whelan, 200 Conn. 743, 513 A. 2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), later codified in § 8-5 (1) of the Connecticut Code of Evidence. We do not agree.

“Before turning to the merits of the defendant’s . . . claim, we set forth the standard of review. The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). “In addition, we note that once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” (Internal quotation marks omitted.) State v. Arthur, 128 Conn. App. 371, 383, 18 A.3d 610, cert. denied, 302 Conn. 910, 23 A.3d 1249 (2011).

“In State v. Whelan, supra, [200 Conn. 751-53] we reviewed our continued adherence to the traditional rule prohibiting the use as substantive evidence of a prior inconsistent out-of-court statement of a nonparty witness. . . . We concluded that an exception to the hearsay rule is necessary to allow the trial court to admit for substantive purposes prior inconsistent statements given under prescribed circumstances reasonably assuring reliability. . . . We therefore adopted a rule allowing the substantive use of prior written inconsistent statements where the declarant: (1) has signed the statement; (2) has personal knowledge of the facts stated; and (3) testifies at trial and is subject to cross-examination. . . . This rule has also been codified in § 8-5 (1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pierre, supra, 277 Conn. 57-58.

The defendant asserts that Whittingham’s statement was admitted improperly because it was not inconsistent, therefore precluding the issue of its admissibility from a Whelan analysis. Specifically, he argues that in order for the court to conclude that a witness’ prior statement is inconsistent where the witness testifies to a complete loss of memory regarding the contents of that statement, it must first find that the witness’ memory loss is feigned. We do not agree. In determining that Whittingham’s testimony was inconsistent with his prior statement to police, we find that the court did not abuse its broad discretion. Moreover, we do not conclude that when a witness testifies to a loss of memory the court is required to make a finding that the memory loss is feigned in order for it to decide that a prior statement is inconsistent with present testimony.

“Whether there are inconsistencies between two statements is properly a matter for the trial court. . . . Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection. . . . The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Citations omitted; internal quotation marks omitted.) State v. Whelan, supra, 200 Conn. 748-49 n.4.

Whittingham’s own testimony indicates that the court did not abuse its discretion in concluding that his prior statement to police was inconsistent. Whittingham unequivocally repudiated his prior statement by saying, “It didn’t happen.” Whittingham’s testimony was not simply that he did not recall the incident that occurred on January 15, 2008; rather, he asserted that his lack of memory meant that the events described in his statement were simply untrue. He clearly and repeatedly stated that the contents of his prior statement were patently incorrect. See footnote 8 of this opinion. Given Whittingham’s explicit and unwavering renunciation of his prior statement, the court did not abuse its discretion in finding inconsistency between Whittingham’s testimony at trial and his prior statement to police.

Furthermore, the court was not required to find that Whittingham was feigning his memory loss in order to conclude that his prior statement was inconsistent. Whelan and its progeny require no such finding. Rather, Whelan plainly states that a claim of memory loss alone can serve as the basis for a finding of inconsistency. State v. Whelan, supra, 200 Conn. 748-49 n.4. In considering the total effect of Whittingham’s testimony, including both his assertions of complete memory loss and his refutation of his statement to police, the court properly, and within its discretion, evaluated the issue of inconsistency.

The defendant next argues that despite the court’s finding that Whittingham’s prior statement met the criteria set forth in Whelan, the statement was nonetheless unreliable and should not have been admitted. We are not persuaded.

“[T]he linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence .... [I]t will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.” State v. Mukhtaar, 253 Conn. 280, 306-307, 750 A.2d 1059 (2000).

The defendant, who bore the burden of showing that the statement was unreliable, pointed to Whittingham’s lack of memory at the time of trial as the sole indicator of the unreliability of his statement to police. However, this misapprehends the issue. The question before the court, under a Whelan analysis, is whether the circumstances surrounding the prior statement contain adequate indicia of reliability. Gonzalez testified regarding the circumstances under which Whittingham gave his sworn statement, and the defendant elicited no testimony or other evidence from him that would suggest that the statement was “untrustworthy” or would “subvert the fairness of the fact-finding process.” Id., 306. Instead the defendant merely asserted that Whittingham lacked credibility, rendering his statement unreliable. Yet, rather than providing a basis for the court to keep Whittingham’s statement from the jury, Whittingham’s credibility, or lack thereof, is precisely an issue for the trier of fact and the statement was properly admitted. See State v. Osborn, 41 Conn. App. 287, 291, 676 A.2d 399 (1996) (“[i]t is the trier’s exclusive province to weigh the conflicting evidence and determine the credibility of witnesses”). We therefore conclude that the court correctly determined that the statement was not so unreliable as to require that it be kept from the jury.

Finally, with respect to Whittingham’s statement, the defendant argues that as a result of Whittingham’s claimed memory loss, he functionally was not subject to cross-examination, as required under Whelan and the confrontation clause of the sixth amendment. We do not agree.

“We begin by noting that . . . we exercise plenary review over whether the trial court properly concluded that the admission of the [statement] did not violate the defendant’s confrontation clause rights . . . .” State v. Simpson, 286 Conn. 634, 651, 945 A.2d 449 (2008). “[W]hen the declarant appears for cross-examination at trial, the [confrontation [c]lause places no constraints at all on the use of his prior testimonial statements.” (Internal quotation marks omitted.) Id., 652. Moreover, “a witness’ claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the confrontation clause ... so long as the witness appears at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination.” State v. Pierre, supra, 277 Conn. 86.

While “limitations on the scope of examination . . . may undermine the process to such a degree that mean- ■ ingful cross-examination ... no longer exists . . . that effect is not produced by the witness’ assertion of memory loss — which ... is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement.” (Internal quotation marks omitted.) Id., 80-81. “Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.” (Internal quotation marks omitted.) Id., 81.

As our Supreme Court further stated in State v. Pierre, supra, 277 Conn. 79, the “defendant’s argument equates a declarant’s inability or unwillingness to remember prior statements made to police with a general unavailability from cross-examination in its entirety.” Whittingham was present at trial, took an oath and answered the questions asked of him by defense counsel. His asserted inability to remember the subject matter that the defendant hoped to reveal did not render him functionally unavailable for cross-examination. Despite Whittingham’s asserted memory loss, the defense, during cross-examination, did have the opportunity to ask questions to highlight Whittingham’s motives and biases. In fact, cross-examination, where he asserted that he remembered nothing from the afternoon of the incident, provided the jury with the basis to credit all or part of his prior statement or to decide that Whittingham’s faulty memory warranted completely disregarding his prior statement. While the defendant ultimately was not satisfied with the content of Whittingham’s responses on cross-examination, we do not find that the court’s decision to admit into evidence the prior statement to police deprived the defendant of his rights under the confrontation clause. As the court properly evaluated the statement under both Whelan and the confrontation clause, we find no error in its admission as substantive evidence.

n

We turn next to the defendant’s claim that the court lacked subject matter jurisdiction to modify his original sentence. We reject the defendant’s claim.

The following additional facts are relevant to the resolution of this claim. Following the jury verdict, the court held a sentencing hearing at the conclusion of which it sentenced the defendant to five years with execution suspended, followed by three years probation for the first count of attempt to commit assault in the second degree; five years for the second count of attempt to commit assault; one year for the fourth count of interfering with a police officer; and three years for the fifth count of carrying a dangerous weapon. The sentence on each of these counts was ordered to run consecutively. The court stated that the total effective sentence was fourteen years, suspended after nine years, with three years of probation to follow. For the term of probation, the court imposed two specific conditions: the defendant was prohibited from possessing weapons and from having any contact with Esposito or Whittingham.

Less than a month after the court originally sentenced the defendant, the state brought to the attention of the court a defect in the structure of the sentence. During a hearing on the matter, the state explained that the court had attached the defendant’s term of probation to his suspended sentence for his conviction on the first count of attempt to commit assault in the second degree, which would result in the defendant’s probation running concurrently with his nine years of imprisonment. The office of probation had informed the state that with the sentence packaged in this way, under State v. Moore, 85 Conn. App. 7, 855 A.2d 1006, cert. denied, 271 Conn. 937, 861 A.2d 510 (2004), it could not execute the sentence intended by the court, that is, that the defendant’s term of probation would not be tolled until he was released from prison.

In light of the defect in the sentence, and with no objection from the defendant, the court adjusted the sentence to reflect its intent. Before imposing the adjusted sentence, the court assured both the defendant and his family that he would be serving no additional prison time as a result of the adjustment. The corrected sentence affected only the first and fifth counts: for count one, five years with execution suspended after one month followed by three years probation; for count five, two years and eleven months. During the resen-tencing, the court did not address whether the sentences were to run consecutively.

“We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) State v. Tabone, 301 Conn. 708, 713-14, 23 A.3d 689 (2011). “Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) State v. Lawrence, 91 Conn. App. 765, 769, 882 A.2d 689 (2006), aff'd, 281 Conn. 147, 913 A.2d 428 (2007). “In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.” State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 86 (1994). “Under the common law, the [trial] court has continuing jurisdiction to correct an illegal sentence. ... In Connecticut, that grant of jurisdiction is recognized and the procedure by which it may be invoked is regulated by Practice Book § 43-22.” (Citations omitted.) State v. Lawrence, supra, 91 Conn. App. 772-73. “For the court to have jurisdiction to consider the defendant’s claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court had jurisdiction to review.” Id., 773.

“Connecticut has recognized two types of circumstances in which the court has jurisdiction to review a claimed illegal sentence. The first of those [and the only circumstance relevant to this appeal] is when the sentence itself is illegal, namely, when the sentence either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Emphasis added; internal quotation marks omitted.) Id., 773-74.

The total effective sentence articulated by the court, as compared to the court’s itemization of its component parts, rendered the sentence ambiguous. As indicated by the record, the court intended, and the parties understood, that the defendant was to serve a total of nine years of incarceration followed by three years of probation with special conditions. However, the sentence as initially conveyed by the court, could be interpreted as either allowing the defendant to serve his probation while incarcerated, or attempting to toll the term of probation until his release. Ambiguity has long been known to mean “[c]apable of being understood in two or more possible senses or ways.” (Internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 572, 816 A.2d 562 (2003) (partially superseded by General Statutes § l-2z). Because the defendant’s sentence, as originally imposed, could be understood to authorize two different outcomes for the defendant, it is ambiguous. Accordingly, we conclude that the court properly had jurisdiction to correct the defendant’s sentence.

Ill

Finally, we address the defendant’s claim that there was insufficient evidence to sustain his conviction of two counts of attempt to commit assault in the second degree pursuant to §§ 53a-49 (a) (l) and 53a-60 (a) (I). We are not persuaded.

The following additional facts are necessary to the resolution of this claim. Prior to jury deliberations, the court held a conference with defense counsel and the state to review proposed jury instructions. The court explained that for the two attempt to commit assault charges, the relevant part of the attempt statute, § 53a-49 (a) (1), would be read to the jury. Specifically, the court would instruct the jury that “a person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, he intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be.” During the conference, neither party objected to this instruction. In closing argument, neither party explicitly addressed “attendant circumstances,” focusing instead on the concept of attempt generally. The court ultimately charged the jury using the “attendant circumstances” language of § 53a-49 (a) (1) discussed during the conference.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jacques, 53 Conn. App. 507, 520, 733 A.2d 242 (1999).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) Id. “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [t]his 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.) Id., 521.

An attempt “is an act or omission done with the intent to commit some other crime. The rationale is that while a defendant may have failed in his purpose, his conduct is, however, criminally culpable, and if carried far enough along causes a sufficient risk of harm to be treated as a crime in and of itself.” State v. Green, 194 Conn. 258, 272, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “[T]he attempt is complete and punishable, when an act is done with [the] intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption ... or for other extrinsic cause.” (Internal quotation marks omitted.) Id., 276. “Under ... § 53a-49 (a), [a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Internal quotation marks omitted.) State v. Cox, 293 Conn. 234, 240-41, 977 A.2d 614 (2009). Furthermore, a “jury could . . . [find a] defendant guilty under both” subsections of § 53a-49 (a). State v. Green, supra, 275.

The defendant argues that the state should have charged him with “substantial step” attempt, under § 53a-49 (a) (2), rather than with “attendant circumstances” attempt under § 53a-49 (a) (1). The question, however, presented by the defendant, and now before this court, is not whether the state would have had a better theory of the defendant’s guilt under a different statutory provision. Instead, it is whether there is sufficient evidence to sustain the defendant’s conviction pursuant to the statutory provision under which he was charged and the jury found him guilty.

The defendant relies on language from two Supreme Court cases, State v. Cox, supra, 293 Conn. 234, and State v. Gonzalez, 222 Conn. 718, 609 A.2d 1003 (1992), in support of his claim that there was insufficient evidence to sustain his conviction of attempt to commit assault under the “attendant circumstances” subdivision of the attempt statute. Yet, the language in those cases cited by the defendant arises in the context of those defendants’ respective challenges to the courts’ jury instructions, not with respect to claims of insufficiency of evidence. The defendant makes no such instructional challenge with this appeal. His claim pertains only to the sufficiency of the evidence to sustain his conviction under the “attendant circumstances” subdivision of the statute.

The defendants in both Cox and Gonzalez claimed that their respective juries were charged with offenses under the incorrect subdivision of § 53a-49 (a). State v. Cox, supra, 293 Conn. 240; State v. Gonzalez, supra, 222 Conn. 721. While the courts in both of those cases found that the juries had been improperly instructed, the consequence of these findings was not reversal of the defendants’ convictions under the erroneous subdivision. State v. Cox, supra, 244-45; State v. Gonzalez, supra, 725. Rather, in Cox, the court then conducted a sufficiency analysis under the subdivision pursuant to which the jury was instructed and charged. State v. Cox, supra, 245-46. In Gonzalez, the majority found that the error was harmless beyond a reasonable doubt. State v. Gonzalez, supra, 726. As the instructions are not at issue in this appeal, we focus only on whether there was sufficient evidence for the jury reasonably to have concluded that the defendant was guilty of attempt to commit assault in the second degree under the “attendant circumstances” subdivision of § 53a-49 (a).

On the basis of the evidence presented in this case, viewed in the fight most favorable to upholding the verdict of guilty, the jury reasonably could have concluded that the testimony regarding the defendant’s verbal and physical threats with a knife proved that the defendant intended to cause serious physical harm to Esposito and Montagnese. Similarly, the jury was free to find, on the evidence presented, that the defendant believed the attendant circumstances were such that he was free to act with impunity when he threatened Esposito with the knife and when he ultimately turned his knife. on Montagnese. The jury reasonably could have determined, in light of the overwhelming testimony, that the defendant pursued both Esposito and Montagnese with laser-like focus and appeared not to register the presence of the police, that the defendant believed he was the only person armed and that he would be able to complete his assault on Esposito and Montagnese, but for the fact that he had misapprehended the situation and was ultimately shot by police. Given that the jury reasonably could have concluded that the evidence showed beyond a reasonable doubt that the defendant intended to cause serious physical injury to Esposito and Montagnese, and he would have if the attendant circumstances were as he believed them to be, we find that there is sufficient evidence to sustain the defendant’s conviction of two counts of attempt to commit assault under § 53a-49 (a) (1).

The judgment is affirmed.

In this opinion FLYNN, J., concurred.

LAVINE, J.,

concurring. I write separately because I believe the case of State v. Green, 194 Conn. 258, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985), while controlling, deserves to be reconsidered by our Supreme Court. In Green, the defendant’s intention to sexually assault a woman was thwarted because the zipper on her pants broke. Id., 260. Our Supreme Court concluded that the jury could have convicted the defendant under either prong of the attempt statute: the “attendant circumstances” prong of General Statutes § 53a-49 (a) (1) or the “substantial step” prong of § 53a-49 (a) (2). State v. Green, supra, 276-77. It is my view that the “attendant circumstances” prong was not intended to apply to a situation in which unforeseen subsequent circumstances frustrate someone from achieving a criminal objective. Rather, the “attendant circumstances” prong was intended to abolish any defense of legal or factual impossibility. See Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-49 (a) (1) (West 2007), commission comment (“[t]his section sweeps aside any consideration of the defense of impossibility”); see also State v. Cox, 293 Conn. 234, 241-46, 977 A.2d 614 (2009) (differentiating § 53a-49 [a] [1] and [a] [2]);People v. Dlugash, 41 N.Y.2d 726, 726-27, 732-37, 363 N.E.2d 1155, 395 N.Y.S.2d 419 (1977) (discussing “attendant circumstances” under New York statute; section applied to defendant who shot dead body believing it to be alive); 4 C. Torcia, Wharton’s Criminal Law (16th Ed. 1996) § 697, pp. 626-32; 21 Am. Jur. 2d 267-68, Impossibility as Defense § 166 (2008). I question whether the “attendant circumstances” provision ought to apply when an assailant is prevented from stabbing someone solely because a police officer shoots him.

Accordingly, I respectfully concur.

       Minutes later Arzu also called 911 from a nearby store.

       The defendant, sixteen years old at the time of the incident, was originally charged as a youthful offender by way of two counts of criminal attempt to commit murder in the commission of a felony, one count of assault in the first degree, one count of burglary in the first degree, one count of carrying or selling a dangerous weapon, one count of reckless endangerment in the first degree, one count of risk of injury to a child, one count of interfering with an officer or resisting arrest, one count of criminal mischief in the first degree and one count of threatening in the second degree. Upon the state’s motion, the defendant’s case was transferred from the youthful offender docket to the criminal docket of the Superior Court.

       On December 17, 2009, shortly before jury deliberations began, the state filed an information with the lesser included offenses of two counts of attempt to commit assault in the second degree, two counts of attempt to commit assault in the third degree and one count of interfering with a police officer.

       As will be discussed In part II of this opinion, the sentencing allocation that resulted in this total effective sentence was later modified by the court, an action the defendant challenges with this appeal.

       “The sixth amendment to the United States constitution provides in relevant part: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .’ The confrontation clause of the sixth amendment is made applicable to the states through the due process clause of the fourteenth amendment.” State v. Sandoval, 263 Conn. 524, 532 n.17, 821 A.2d 247 (2003).

       Whittingham was incarcerated in the same facility as the defendant

       As the court stated, the state expected “a Whelan issue” with calling Whittingham. See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       The following is an excerpt of the state’s redirect examination of Whit-tingham:
      “Q. But it’s not true, what’s in the statement?
      “A. Yes.
      “Q. And you are saying today that what’s in the statement is not true?
      “A. Yes.
      “Q. How do you know it’s not true if you don’t remember anything from that day?
      “A. Because I can’t confirm that it’s true if I don’t remember it.”

       “The Court: Now on those things, sir, are you saying that those events that you read about what happened at the apartment, that those events did not happen?
      “[Whittingham]: That is what I’m saying.

        “The Court: I guess what I’m trying to find out, sir, is if there are parts of your statement that refer to [the defendant]. Would you be able to tell counsel these are not correct or they are inaccurate in part?
      “[Whittingham]: No, they are not correct.
      “The Court: I’m sorry?
      “[Whittingham]: Not correct.
      “The Court: You would say they are not correct. And why would you be able to say they are not correct?
      “[Whittingham]: Because I read the statement. It didn’t happen, so it’s incorrect.”

       The defendant argued that this functional inability to cross-examine Whittingham made the statement inadmissible under evidentiary principles, as well as under the confrontation clause of the sixth amendment to the federal constitution.

       The parties, by agreement, redactedportions of Whittingham’s statement related to gang activity and guns, as they determined the prejudicial effect of these topics would outweigh their probative value.

       We note that Whittingham need not have affirmatively renounced his statement for the court to have properly decided it was inconsistent. The court makes its determination based on the overall effect of the witness’ testimony, looking at both omissions and contradictions. See State v. Whelan, supra, 200 Conn. 748-49 n.4.

       Before the court ruled on the admissibility of Whittingham’s prior statement, defense counsel argued to the court: “There is no indicia of reliability. If anything we have seen today shows, that is, if this young man said that the sun will rise tomorrow, the odds against it would be high.” Defense counsel further argued that Whittingham had no credibility, so neither his prior statement nor his testimony at trial were reliable.

       We note that where cross-examination is sufficient to comply with the threshold requirements of the constitution, it will satisfy the Whelan standard as well. See State v. Pierre, supra, 277 Conn. 75 (“hearsay rules and the [c]onfrontation [c]lause are generally designed to protect similar values . . . [but] [t]he [confrontation [cjlause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule” [internal quotation marks omitted]); see also State v. Eaton, 59 Conn. App. 252, 265-66, 755 A.2d 973 (analyzing cross-examination prong of Whelan under confrontation clause principles), cert. denied, 254 Conn. 937, 761 A.2d 763 (2000).

       In State v. Moore, supra, 55 Conn. App. 10, the defendant contended that “probation [may] be stayed only until the completion of incarceration for the same crime to which the probation applies.” The court agreed with the defendant’s contention. See id., 12-13.

       Defense counsel stated, “We’re basically agreeing on whatever’s gonna happen.” We need not address whether this constitutes waiver, as the issue of subject matter jurisdiction “may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

      The defendant refers to this subdivision of the General Statutes as “mistake of fact” attempt. This is a misnomer in two respects. First, we believe that the defendant means to refer to this subdivision as “factual impossibility” attempt, a concept formerly contained in this section of the statute. “Mistake of fact,” however, is an affirmative defense to negate the intent element of a crime available under General Statutes § 53a-6 (a) “when one makes an erroneous perception of the facts as they actually exist.” (Internal quotation marks omitted.) State v. Beltran, 246 Conn. 268, 274, 717 A.2d 168 (1998). Second, “factual impossibility” attempt was eliminated from the statutory scheme in 1971. See Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-49 (West 2007), commission comment (“[t]his section sweeps aside any consideration of the defense of impossibility, including the distinction between so-called factual and legal impossibility”). A more apt shorthand for this subdivision would be “attendant circumstances” attempt. General Statutes § 53a-49 (a) (1) defines “attendant circumstances” attempt as follows: “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime,-he . . . [(Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be . . . .”
      The defendant argues that the state should have charged him with “substantial step” attempt, defined in § 53a-49 (a) (2) as follows: “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-60 (a) (1) provides in relevant part: “A person is guilty of assault in the second degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       The language the defendant cites originated partially in Gonzalez and was later quoted and expanded upon in Cox: “Each subdivision of § 53a-49 (a) sets forth an alternative way to commit attempt, and the difference between the subdivisions is significant. The first type, § 53a-49 (a) (1), deals with the situation where one engages in conduct which would constitute the offense if matters were as he perceived them; i.e., some mistake in fact prevents these from being a crime even though the actor intends to commit one. The second type, § 53a-49 (a) (2), involves carrying out in part some substantive portions of the proscribed conduct. . . . An instruction on [§ 53a-49 (a) (1)] should be given when the evidence indicates that aperpetrator failed to accomplish or complete all the elements of a particular crime solely because the attendant circumstances were not as the perpetrator believed them to be, rendering the commission of the crime impossible. Examples of a violation of § 53a-49 (a) (1) would be a pickpocket’s failure to complete a larceny because his hand was in an empty pocket, or an attempt by an accused to bribe a juror but mistakenly approaching a nonjuror. . . . On the other hand, a court should charge on § 53a-49 (a) (2) when the evidence indicates that a perpetrator has done something which, under the circumstances as he believed them to be, is an act constituting a substantial step in a course of conduct planned to culminate in his commission of a particular crime. In other words, this sub [division] is directed at the more common attempt situations [wherein] the actor’s conduct falls short of the completed offense for reasons other than impossibility.” (Citations omitted; internal quotation marks omitted.) State v. Cox, supra, 293 Conn. 241-42; see State v. Gonzalez, supra, 222 Conn. 724-25.

       The court in Cox found that there was insufficient evidence to sustain the verdict, as the state had not presented evidence of the attendant circumstances surrounding the attempted shooting in that case. State v. Cox, supra, 293 Conn. 247.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    MATTHEW MOTT v. WAL-MART STORES EAST, LP
    (AC 33974)
    Robinson, Bear and Dupont, Js.

      Argued September 7
    officially released December 18, 2012

      Christopher DeMarco, for the appellant (plaintiff).

      Kate Boucher, with whom, on the brief, was Joaquin Madry, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff in this premises liability action, Matthew Mott, appeals from the summary judgment rendered by the trial court in favor of the defendant, Wal-Mart Stores East, LP. The plaintiff claims on appeal that the court improperly granted the defendant’s motion for summary judgment solely on the basis that the plaintiff failed to file an opposing affidavit in support of his objection to the motion for summary judgment. We agree and, accordingly, reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In 2009, the plaintiff initiated this action after he allegedly slipped and fell on an area of ice in the defendant’s parking lot, breaking his ankle. In his revised complaint, the plaintiff alleged that the defendant was negligent because it failed to maintain the parking lot in a reasonably safe condition, to inspect the parking lot following an accumulation of ice to determine whether it was safe for use, to warn the plaintiff of the dangerous condition and/or to take reasonable steps to remedy the condition after it knew or should have known about the danger created by the ice. The defendant filed an answer to the complaint in which it denied all allegations that the plaintiff was injured as a result of any negligence by the defendant and asserted a special defense of contributory negligence.

After the case had been assigned for trial, the defendant sought and was granted permission to file a motion for summary judgment pursuant to Practice Book § 17-44. The defendant stated in its motion for summary judgment that it was “readily evident” that the plaintiff could not demonstrate that the defendant had had actual or constructive notice of the spot of ice that the plaintiff allegedly fell on, and, because there was no genuine issue of material fact as to whether the defendant had actual or constructive notice of that specific defect, it was entitled to judgment as a matter of law on the entire complaint. In support of the motion for summary judgment, the defendant filed a memorandum of law to which it attached copies of the plaintiffs notice of the filing of his revised complaint, a transcript of a portion of the plaintiffs deposition testimony and an unreported Superior Court opinion, Gomez v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV-06-5000100-S (March 7, 2006), which the defendant cited in its memorandum.

After receiving an extension of time to respond to the motion for summary judgment, the plaintiff filed an objection to the motion for summary judgment on August 10, 2011. The objection was accompanied by a memorandum of law in which the plaintiff argued that whether the defendant had actual or constructive notice of the defect alleged was a genuine issue of material fact that remained in dispute. According to the plaintiff, he had an incident report indicating that another person had slipped on ice on the defendant’s premises approximately twenty hours prior to the plaintiffs fall. Further, the plaintiff indicated that weather data existed that showed that two inches of snow, sleet and freezing rain had precipitated the day prior to the plaintiffs fall. The plaintiff, however, did not attach an affidavit or other documentary evidence in support of those assertions. The defendant filed a reply to the plaintiffs objection arguing that the plaintiff had failed to produce any evidence that would “remove the issue of notice from the realm of speculation or conjecture.”

On September 6, 2011, the court heard argument on the defendant’s motion for summary judgment. At the outset, the court noted on the record that the plaintiff had failed to file any documentary evidence in support of his opposition to the defendant’s motion for summary judgment. The court next heard very brief arguments on the merits of the motion for summary judgment. At the conclusion of arguments, the court indicated that it would “take the papers.”

Later that same day, the plaintiff filed a supplemental memorandum in opposition to the motion for summary judgment. The purpose of the supplemental memorandum was to submit a copy of the incident report that the plaintiff had referenced in his objection to the motion for summary judgment concerning the other slip and fall at the defendant’s premises, but which he had failed to attach as an exhibit to his opposition. According to the plaintiff, the incident report, which had been disclosed by the defendant as part of an April 21, 2011 response to a request for production, constituted some evidence of the defendant’s notice of the dangerous condition of the parking lot prior to his injury. The defendant filed an objection to the supplemental memorandum on September 8, 2011, arguing that Practice Book § 17-45 requires that affidavits and other documentary evidence in opposition to summary judgment motions be filed before the motion is heard and, citing Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 656, 905 A.2d 1256 (2006), that it is well within the discretion of the court to refuse to consider documentary evidence that is not timely submitted.

On September 13, 2011, the court issued a one page memorandum of decision granting the defendant’s motion for summary judgment. The court concluded that “[t]he materials submitted by the defendant indicate that it had no notice of the alleged defect prior to the fall. The plaintiffs objection claims otherwise, but the problem is that the plaintiff has utterly failed to comply with [Practice Book] § 17-46 .... Given this complete failure to comply with the requirements of the rules of practice, the plaintiffs factual assertions cannot be considered. Under these circumstances, the motion for summary judgment must be granted.” The court does not state whether it considered the report attached to the plaintiffs supplemental opposition. On September 19, 2011, the court issued an order marking off the defendant’s objection to the plaintiffs supplemental memorandum in opposition to summary judgment “because a ruling [had] already been issued granting the defendant’s motion for summary judgment.”

Also on September 19, 2011, the plaintiff filed a motion to reargue. The plaintiff argued that the court erroneously had based its decision entirely on the plaintiffs failure to submit an affidavit in opposition to the motion for summaiy judgment in accordance with Practice Book § 17-45, but appeared to ignore that the plaintiff later submitted documentary evidence with his supplemental opposition from which the court could have found that a genuine issue of material fact existed as to the issue of notice. The plaintiff also argued that he was “at a loss as to what materials the court [was] referring to” when it stated that the defendant had submitted materials indicating that the defendant “had no notice of the alleged defect prior to the fall.” The defendant opposed the motion to reargue on the ground that the court properly had disregarded the report that the plaintiff attempted to submit following argument of the motion for summary judgment and that the plaintiffs deposition testimony, submitted with its motion for summary judgment, established that the defendant did not have “notice of the alleged defective condition, namely an ‘accumulation of ice on said premises’ . . . .” The court denied the motion to reargue without comment. This appeal followed.

We first set forth the relevant standards that generally govern our review of a court’s decision to grant a defendant’s motion for summary judgment. “Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmov-ing party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court’s conclusions were legally and logically correct and find support in the record.” (Citations omitted; internal quotation marks omitted.) Himmelstein v. Windsor, 116 Conn. App. 28, 42-43, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012).

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion for summary judgment solely on the basis of the plaintiffs failure to append an affidavit to his memorandum in opposition, and that it did so despite the fact that the defendant had failed to submit any documentary evidence in support of the motion that established the absence of a genuine issue of material fact concerning whether the defendant had actual or constructive notice of the defect that allegedly resulted in the plaintiffs injuries. In response, the defendant contends that the court determined that the defendant had met its burden of showing that no factual dispute existed as to its lack of notice and then properly shifted the burden to the plaintiff to submit evidence establishing that a genuine issue of material fact remained, which burden the plaintiff failed to meet. Because, on the basis of our plenary review of the record, we agree with the plaintiff that the defendant failed to meet its initial burden of establishing the absence of a genuine issue of material fact regarding notice, we reverse the decision of the court and, accordingly, need not address the parties’ arguments as to the propriety of the filing of the supplemental memorandum in opposition or the court’s treatment of the supplemental memorandum and documents attached thereto.

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypica!ly [demonstrating a genuine issue requires a showing of eviden-tiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 49, 19 A.3d 215 (2011).

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint .... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. Allstate Ins. Co. v. Barron, [269 Conn. 394, 406, 848 A.2d 1165 (2004)]; see also Harvey v. Boehringer Ingelheim Corp., [52 Conn. App. 1, 8-9, 724 A.2d 1143 (1999)] (where summary judgment movant’s affidavit did not dispense with factual issues raised by opponents’ counterclaim, burden of proof did not shift to opponents, and their failure to file supporting affidavits was not a fatal flaw to their objection); cf. 49 C.J.S. 379, [Judgments § 266 (1997)] (if the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings).” (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 229-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The operative complaint in the present case contains a single count sounding in negligence on a theory of premises liability. The defendant conceded in its motion for summary judgment that the plaintiff was a business invitee of the defendant and, as such, that the defendant owed him a duty of care to keep its premises in a reasonably safe condition. “Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it. . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.” (Internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 418 n.9, 3 A.3d 919 (2010). The plaintiff alleged in his complaint that the defendant knew or, by exercising reasonable care, should have known of the dangerous condition of the premises, namely, the area of ice on which the plaintiff fell.

In its motion for summary judgment, the defendant stated that the outcome of the present case turns on the disputed issue of the defendant’s actual or constructive notice of the alleged defect. The defendant asserted that the plaintiff “simply cannot offer any evidence that the [defendant had notice of the defect that caused his injury, namely, ice in the area where the [p]laintiff fell.” To prevail on amotion for summary judgment, however, the defendant had an obligation to negate the factual claims as framed by the complaint. To that end, it was incumbent on the defendant to provide the court with more than its belief that it was “readily evident” that the plaintiff ultimately would be unable to meet his obligation at trial to produce evidence to prove that the defendant had actual or constructive notice of the alleged defect. In other words, before the plaintiff had acquired any obligation to produce evidence that would tend to show that the defendant, in fact, had notice of the defect, the defendant had the burden of producing evidentiary support for its assertion that its lack of notice was an undisputed fact.

The trial court stated in its memorandum of decision that “[t]he materials submitted by the defendant indicate that it had no notice of the alleged defect prior to the fall.” The only evidentiary material submitted to the court by the defendant was a portion of the plaintiffs deposition testimony. The court does not indicate in its decision what portion of that testimony satisfied the defendant’s burden of showing the nonexistence of any disputed factual issue regarding the element of notice. The defendant states in its appellate brief that “[t]he plaintiffs personal belief that his own deposition testimony does not establish the nonexistence of a genuine issue of material fact is irrelevant,” but it makes no attempt to identify the portions of the transcript that it believes support the court’s contrary determination. On the basis of our independent review, we can find nothing in the plaintiffs deposition testimony that supports the court’s statement that the testimony indicated that the defendant had no notice of the alleged defect prior to the fall.

At the deposition, the defendant elicited the following facts from the plaintiff regarding his fall. He drove to the defendant’s store to purchase groceries, and, on his way inside, he slipped on a large area of ice in the parking lot and injured his foot. A store employee helped him up and into the store, where he waited for an ambulance. The weather at the time of the fall had been bitterly cold, possibly the coldest day of the year. It was not precipitating when he fell, but it had snowed the day before and there was an inch or two of snow on the ground. In the short period of time between his arrival at the parking lot and his fall, he did not observe anyone else having trouble walking in the area where he fell because he was the only one in that area at the time. The plaintiff was not asked about nor did he testify to anything from which one reasonably could deduce that the defendant did not have actual or constructive notice of the area of ice on which the plaintiff allegedly had slipped.

On appeal, the defendant maintains that this court, on a number of occasions, has affirmed decisions granting a motion for summary judgment on the ground that the nonmoving party had failed to file any opposing documentary evidence, citing this court’s decisions in Lefebvre v. Zarka, 106 Conn. App. 30, 39, 940 A.2d 911 (2008), Barile v. LensCrafters, Inc., 74 Conn. App. 283, 286, 811 A.2d 743 (2002), Chase Manhattan Bank v. CDC Financial Corp., 54 Conn. App. 705, 708-709, 736 A.2d 938, cert. denied, 251 Conn. 912, 739 A.2d 1247 (1999), and Inwood Condominium Assn. v. Winer, 49 Conn. App. 694, 697-98, 716 A.2d 139 (1998). Lefebvre, Chase Manhattan Bank and Inwood Condominium Assn, readily are distinguishable from the present case because, in each, it is clear that the successful movant had produced some evidence, usually in the form of an affidavit or deposition testimony of the defendant or an agent, showing the absence of a genuine issue of fact, and, therefore, it was proper for the court to turn to the nonmovant’s submissions, or lack thereof, in opposition to summary judgment. See Lefebvre v. Zarka, supra, 37; see also Chase Manhattan Bank v. CDC Financial Corp., supra, 708-709; Inwood Condominium Assn. v. Winer, supra, 696.

In Barile, the trial court granted the defendants’ motions for summary judgment on the basis of the plaintiffs failure to comply with Practice Book § 17-45. Barile v. LensCrafters, Inc., supra, 74 Conn. App. 284. The plaintiff had tried to file documents supporting his opposition to one of the motions for summary judgment three days before the hearing and to the other on the morning of the hearing, but they were not accepted by the court. Id. This court, in a short per curiam opinion, held that the trial court properly had granted the motions for summary judgment based on the untimely filing of the plaintiffs opposition. Id., 286. Because of the truncated nature of the opinion in Barile, it is not clear whether the trial court or this court considered the evidence the defendants had presented to meet their evidentiary burden; however, the opinion does state that “[i]f the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof. . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 286. Accordingly, we must presume that this court considered the evidence the defendant had presented to meet its evidentiary burden before it decided that the trial court properly had chosen not to accept the late submissions of the plaintiff and granted the motion for summary judgment on that basis.

The defendant in the present case did not provide an affidavit averring that it lacked knowledge of the defect at issue prior to the plaintiffs fall. Further, as previously stated, the deposition testimony of the plaintiff alone cannot be read as negating, as a matter of law, the issue of notice. Even assuming that the plaintiff faces a difficult challenge in ultimately proving its case at trial, that assumption cannot form the basis for granting a motion for summary judgment. “So extreme a remedy as summary judgment should not be used as a substitute for trial or as a device intended to impose a difficult burden on the non-moving party to save his [or her] day in court unless it is clear that no genuine issue of fact remains to be tried. ... A judge’s function when considering a summary judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried; rather, only if the case is dead on arrival, should the court take the drastic step of administering the last rites by granting summary judgment.” (Citation omitted; internal quotation marks omitted.) Wing v. Arvin Industries, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-05-4010122-S (April 28, 2006), citing Mitchell v. Mitchell, 766 A.2d 179, 186 (R.I. 2000).

“A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 370, 743 A.2d 663 (2000). The submissions provided by the defendant in support of its motion for summary judgment cannot be viewed properly as removing the issue of notice as a triable issue of fact in the present case. The court’s statement to the contrary is clearly erroneous. Accordingly, because the defendant failed to meet its evidentiary burden, the plaintiff was entitled to a denial of the defendant’s motion for summary judgment, and it was not legally or logically correct for the court to have granted the motion for summary judgment on the basis that the plaintiff had failed to file an opposing affidavit or other supporting documents with its opposition to summary judgment.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Practice Book § 17-44 provides: “In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge.”

       According to the memorandum of law, this exhibit was supposed to be a copy of the revised complaint. The document attached to the file copy, however, is the notice of filing of revised complaint.

       Practice Book § 17-45 provides: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”
      Practice Book § 17-46 provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”


author: SHELDON, J.

text:
    VINCENT METRO, LLC v. KENNETH S. GINSBERG ET AL.
    (AC 33654)
    Lavine, Robinson and Sheldon, Js.

      Submitted on briefs September 17
    officially released December 18, 2012

      Peter E. Ricciardi and Albert J. Oneto TV filed a brief for the appellant (plaintiff).

      Kenneth A. Votre filed a brief for the appellees (defendants).
   Opinion

SHELDON, J.

The plaintiff, Vincent Metro, LLC, a licensed real estate broker, commenced this action against four defendants — Kenneth S. Ginsberg and his company, YAH Realty, LLC (YAH), and two of their customers, John Fitzpatrick (John) and Rose Fitzpatrick (Rose) — to recover commissions it claims to have earned under an exclusive listing agreement between itself and YAH for certain of YAH’s commercial condominium units in Hamden. The action is now before this court on the plaintiffs appeal from the judgment of the trial court denying the plaintiffs application for a prejudgment remedy against YAH in the amount of $22,668.55, a sum representing the total of all commissions the plaintiff seeks to recover herein. The plaintiff claims that the trial court committed clear error in denying its application for a prejudgment remedy because the evidence presented to it established probable cause that it will recover judgment against YAH in an amount equal to or greater than the requested sum. The plaintiff claims that the evidence established its right to recover the commissions here at issue by proving that it procured ready, willing and able buyers for three of YAH’s listed condominium units during the term of the fisting agreement. We agree with the plaintiffs claim with respect to one of the listed units, as to which YAH and John, a buyer procured by the plaintiff, entered into a written sales agreement dining the term of the listing agreement. We disagree with the plaintiff, however, with respect to the other two fisted units, which YAH eventually sold to John and Rose over two years after the listing agreement had expired. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts, which are undisputed, are relevant to our resolution of the plaintiffs claims on appeal. YAH owned an undeveloped commercial property in Hamden, known as Corporate Ridge, which had been approved for the development of commercial condominium space in the form of a large metal building that was to be subdivided into individual garage units that were to be sold separately to interested parties. YAH entered into an exclusive listing agreement with the plaintiff for the sale of such units for the period from July 18, 2006 to January 7, 2006. Under that agreement, YAH agreed to pay the plaintiff a commission in the amount of 5 percent of the purchase price for each unit that was either sold during the period of the agreement or for which, in that same time frame, the plaintiff found “a buyer . . . who [wa]s ready, willing and able to buy . . . the property upon the authorized terms and conditions of the sale ... or upon any other terms and conditions acceptable to [YAH].”

During the term of the listing agreement, the plaintiff procured a buyer, John, for one of the listed units. On December 13,2006, John and YAH entered into a written contract for the purchase and sale of that unit, known as unit 16, pursuant to which John paid the plaintiff an initial deposit of $20,000. The contract set a closing date of June 30, 2006, but further provided that if construction of the unit was not completed by that date, YAH would have an additional sixty days to complete its construction. Construction of unit 16 was not completed by the closing date; nor was it completed within sixty days thereafter. John thus cancelled his contract for the purchase of unit 16 and sent the plaintiff a letter demanding the return of his $20,000 deposit, which he asked to be turned over to YAH. Nearly two years later, on April 14, 2008, John and his mother, Rose, jointly purchased two other units at Corporate Ridge, known as units 12 and 13, directly from YAH. YAH has never paid the plaintiff a commission in connection with either John’s cancelled contract for the purchase of unit 16 or John and Rose’s later purchase of units 12 and 13.

On October 21, 2009, the plaintiff filed this action against the defendants, claiming, inter alia, that they had conspired together to deprive it of commissions to which it was entitled in connection with the two previously described transactions. On November 8, 2010, the plaintiff filed an application for a prejudgment remedy in the amount of $22,568.56, a sum representing the total of all commissions it claimed to have earned by procuring ready, willing and able buyers for YAH’s listed units: $6450 for the first transaction, involving unit 16; and $16,118.55 for the second transaction, involving units 12 and 13. On July 12, 2011, the court denied the plaintiffs application for a prejudgment remedy. With respect to the first transaction, the court determined that the plaintiff “produced a buyer who was not ready or willing to purchase [YAH’s] property unless a certain contingency was fulfilled, ” to wit: that the condominium unit be built by the closing date or within sixty days thereafter. The court reasoned that because that contingency had not been fulfilled, John was within his rights to cancel the contract, and thus the plaintiff was not entitled to a commission in connection therewith. As to the second transaction, the court noted that “a listing agreement’s termination date cannot thereafter be construed as an open ended listing” and denied the plaintiffs application on the ground that there was “insufficient evidence that [that] sale was negotiated in 2005 or 2006.” Although the court noted that “[a] full hearing with all relevant parties testifying might change the application of the law,” it denied the plaintiffs application on the basis of the evidence then before it. This appeal followed.

“A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment. . . . General Statutes § 52-278a (d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff. . . . General Statutes § 52-278d (a) (1). . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for [the] standard of review [on appeal], [our Supreme Court has instructed that an appellate] court’s role on review of the granting [or denial] of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. ... In the absence of clear error, [a reviewing] court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136-38, 943 A.2d 406 (2008).

The plaintiff here contends that the trial court improperly denied its application for a prejudgment remedy because the evidence before it clearly established that the plaintiff had earned the subject commissions by procuring ready, willing and able buyers for YAH’s listed units in accordance with the listing agreement. “The right of a brokerage firm to recover a commission depends upon the terms of its employment contract with the seller. To be enforceable, this employment contract, often called a listing contract, must be in writing and must contain the information enumerated in General Statutes § 20-325a (b). ... To recover its commission, the brokerage firm ordinarily must show that it has procured a customer who is ready, willing, and able to buy on terms and conditions prescribed or agreed to by the seller. ... In the alternative, the broker may be entitled to recover if it has brought the buyer and the seller to an enforceable agreement.” (Citations omitted.) Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77-78, 438 A.2d 1202 (1982). Our Supreme Court “has repeatedly held that a broker who has, in accordance with a listing contract, found a purchaser ready, willing, and able to purchase, on the owner’s own terms, is entitled to its commission even though no contract for the sale of the property has ever been executed. Dyas v. Akston, 137 Conn. 311, 313, 77 A.2d 79 (1950); Finch v. Donella, 136 Conn. 621, 626, 73 A.2d 336 (1950); Wright v. Reid, 111 Conn. 141, 145, 149 A. 239 (1930).” Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982).

In the case before us, the listing agreement did not require the plaintiff to bring the parties to an enforceable contract in order to recover its commission; nor did it require consummation of such a contract to establish its right to a commission. The listing agreement entitled the plaintiff to recover its commission upon the procurement of a purchaser ready, willing, and able to purchase YAH’s property, either upon the terms and conditions of the sale or upon any other terms and conditions acceptable to YAH. It is undisputed that the plaintiff introduced John to YAH and that he and YAH entered into a contract for the purchase and sale of unit 16 during the period of the plaintiffs exclusive listing agreement. Although the sale of that unit was not consummated prior to the expiration of the agreement, consummation of a sale was not required by the agreement to earn a commission thereunder. The timely execution of the sales contract, moreover, provided strong “eviden[ce] of the procurement of a ready, willing, and able buyer on terms acceptable to the seller, [which was] the . . . basis of recovery stipulated in the listing contract.” Revere Real Estate, Inc. v. Cerato, supra, 186 Conn. 78.

In denying the plaintiffs application for a prejudgment remedy on the basis of its procurement of a buyer for the first transaction, the court relied on Ditchkus Real Estate Co. v. Storm, 25 Conn. App. 51, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). In Ditchkus, the parties had entered into a listing agreement for a period of six months, during which the plaintiff had procured a buyer that entered into negotiations with the defendant to purchase the defendant’s property. As a result of those negotiations, the defendant and the buyer entered into two successive sales contracts for the property, both of which were expressly made contingent upon obtaining a zoning approval for the property. Because, by the end of the listing period, the zoning approval was not obtained, the court concluded that “[t]he plaintiff produced a buyer who was not ready or willing to purchase the defendant’s property unless a certain contingency was fulfilled. . . . Thus, the contract between the defendant and [the buyer] was void before the expiration of the listing agreement.” (Citations omitted.) Id., 55. Relying upon the court’s holding in Ditchkus, the trial court in this case concluded that the plaintiff had similarly failed to procure a buyer who was ready, willing and able to purchase YAH’s property because the contingency that the unit be completely constructed by the closing date or within sixty days thereafter had not been met.

The court’s reliance on Ditchkus in this regard, however, is misplaced, for two reasons. First, the contract between John and YAH for the purchase and sale of unit 16 was not expressly made contingent upon the completion of construction by the closing date or within sixty days thereafter. Although the contract contained a provision setting the closing date and providing that construction was to be completed by that date or within sixty days beyond that date, it did not describe completion by that date as a contingency or provide that the contract would become null and void if the construction schedule was not met. While it is doubtless true that John could have sued YAH for breach of contract for failing to complete construction by the listed deadline, his right to seek rescission of the contract on that basis necessarily would arise from YAH’s breach of an otherwise valid and enforceable contract, as to which, in the alternative, he could just as well have sought specific performance. In short, although John could have sought to avoid the obligations of the contract based upon YAH’s alleged breach of its terms, the contract between them, unlike that in Ditchkus, remained valid and enforceable as to YAH even after the contractually specified period for completion of construction had expired. See footnote 4 of this opinion.

The second reason why Ditchkus is inapplicable to the plaintiffs claim for a commission in connection with YAH’s contract with John for the purchase and sale of unit 16 is that, even if completion of construction on the contractually specified schedule could be characterized as a contingency, fulfillment of that contingency — and thus, assertedly, preservation of the plaintiffs right to receive a commission for finding a ready, willing and able buyer for unit 16 — rested solely within the power and control of YAH, the seller of the listed property for whose benefit the buyer had been procured. Our Supreme Court has made it clear, however, that: “A seller cannot defeat a broker’s right to its commission by his unilateral nonperformance of a sales contract unless the fisting contract reserves the right to condition payment upon consummation of the sales contract.” Revere Real Estate, Inc. v. Cerato, supra, 186 Conn. 80. Here, then, where nothing in the listing agreement conditioned the plaintiffs right to payment of a commission upon consummation of the sales contract, and YAH’s failure to finish construction of unit 16 on the schedule promised in its sales contract was solely its responsibility, the plaintiffs right to recover a commission in connection with the sale of that unit cannot be defeated by YAH’s unilateral failure to meet that schedule. We thus conclude that the court improperly found that the plaintiff had not procured a ready, willing and able buyer for YAH’s property in accordance with the terms of the fisting agreement as to the first transaction.

The plaintiffs claim for a commission in connection with the 2008 sale of two of YAH’s other units is, as the trial court concluded, less clear. The plaintiff claims that, although the 2008 sales agreement was executed and consummated after the expiration of the fisting agreement, its initial procurement of John as a buyer for unit 16 during the term of the fisting agreement and later involvement in negotiating his contract to purchase that unit are sufficient to entitle it to a commission in connection with YAH’s later sales of two other units in the Corporate Ridge development to John and Rose. In support of this argument, the plaintiff relies on Covino v. Pfeffer, 160 Conn. 212, 276 A.2d 895 (1970), and Levy, Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 797 A.2d 574 (2002). In each of those cases, the court concluded that the plaintiff broker was entitled to a commission based upon sales of listed properties which, although not consummated until after the expiration of the subject listing agreement, were fully negotiated and agreed to within the period of the agreement.

Here, by contrast, there is no evidence that either John or Rose ever agreed, during the term of the plaintiffs listing agreement with YAH, to terms and conditions acceptable to YAH for the purchase of units 12 and 13, either as finally consummated in the 2008 transaction or otherwise. The plaintiffs principal testified that he had never seen the contract for the purchase of those units and was not privy to the terms of sale with respect to them. YAH correctly notes that no evidence was offered to suggest that the 2008 contract related in any way to negotiations or offers made during the term of the listing agreement. In the absence of such evidence, any finding that John and Rose were ready, willing and able to purchase those units from YAH during the term of the listing agreement would be entirely speculative. It was due to the lack of any such evidence that the trial court denied the plaintiffs application for a prejudgment remedy based upon any commission it claimed to have earned in connection with the 2008 transaction. We cannot conclude that the court’s denial of a prejudgment remedy on the basis of that analysis constituted clear error.

The judgment is reversed with respect to the plaintiffs claim for a commission in connection with the 2005 contract with YAH for the purchase of unit 16 and the case is remanded for further proceedings on the plaintiffs application for a prejudgment remedy not inconsistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The deposit check was drawn on the account of Rose, who was not a parly to that purchase agreement.

       The granting or denial of a prejudgment remedy is a final judgment for purposes of appeal. See General Statutes § 52-2781 (a); Socci v. Pasiak, 116 Conn. App. 685, 978 A.2d 96 (2009).

       It is undisputed that the units were not sold during the term of the listing agreement.

       Although the listing agreement between the plaintiff and YAH in this ease does not contain any requirement that the plaintiff bring YAH and the purchaser to an enforceable contract, we note that the mere existence of a contingency clause in a contract does not render a contract unenforceable. Indeed, when events occur that trigger such a contingency clause, the events that transpire, or the remedies that are available as a result of that clause, stem from the contract itself.
      YAH also misinterprets the language of the 2005 contract between YAH and John in that it suggests that the contract was contingent upon the completion of the unit. In fact, there is nothing in the contract that provides for the cancellation or avoidance of the contract if the unit is never completed. The clause regarding completion, which is entitled “Seller’s Obligation to Perform,” provides, inter alia: “If, at the time of closing as provided herein, the Unit shall not have been completed according to specifications agreed upon by the parties and/or a certificate of occupancy shall not have been issued for the Unit despite the due diligence of SELLER, then SELLER shall have an additional period of sixty (60) days within which to complete the Unit and secure a certificate of occupancy and the date of closing shall be extended accordingly.” The contract does not indicate that the failure of YAH to complete the unit shall excuse the purchaser from fulfilling his contractual obligations.