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CHANDRA BOZELKO v. WEBSTER BANK, N.A.
(AC 37078)
Lavine, Mullins and Pellegrino, Js.
Argued May 18—officially released September 15, 2015
(Appeal from Superior Court, judicial district of New
London, Hon. Seymour L. Hendel, judge trial referee.)
Chandra Bozelko, self-represented, the appellant
(plaintiff).
John C. Pitblado, with whom was Jon Sterling, for
the appellee (defendant).
Opinion
MULLINS, J. The self-represented plaintiff, Chandra
Bozelko, appeals from the summary judgment rendered
by the trial court in favor of the defendant, Webster
Bank, N.A. On appeal, the plaintiff claims that the court
improperly ruled that each count of her complaint was
barred by a properly asserted statute of limitations
defense and that the court abused its discretion in deny-
ing her motion to reconsider.1 We affirm the judgment
of the court.
The following facts and relevant procedural history
inform our review. In a complaint dated September 1,
2011, the plaintiff brought an action against the defen-
dant in four counts, namely, fraudulent nondisclosure,
violation of the Connecticut Unfair Trade Practices Act;
General Statutes § 42-110a et seq.; breach of the implied
covenant of good faith and fair dealing, and spoliation
of evidence. In relevant part, the plaintiff alleged that,
in July, 2003, she had a checking account with the
defendant, and that on two separate occasions in
November, 2003, a fraudulent check in the amount of
$10,000 was deposited into her account. She also alleged
that the defendant had her arrested and charged with
one count of larceny in the first degree and two counts
of forgery in the third degree, but that these charges
later were nolled.2 The plaintiff alleged that, while she
was in prison, a fellow inmate informed her that she
and an accomplice ‘‘had purchased account numbers
from an employee [of the defendant] at the 80 Elm
Street, New Haven branch in 2003 and that [the] plain-
tiff’s information was [among the] account numbers
sold.’’ She further alleged that the defendant ‘‘never
notified any customers, including [the] plaintiff, of [the]
security breach by the employee at the 80 Elm Street
branch [and that] . . . [the defendant] made every
attempt to conceal its wrongful acts and omissions to
[the] plaintiff.’’ On the basis of these alleged facts, the
plaintiff brought her four count complaint.
The defendant denied the material allegations of the
complaint and raised several special defenses to each
count, including statutes of limitations defenses under
General Statutes §§ 52-584, 42-110g, 52-577, 52-576, ‘‘or
other applicable statute(s) of limitation.’’ The plaintiff
filed a reply in which she simply denied each special
defense. On October 1, 2012, the defendant filed a
motion for summary judgment with an accompanying
memorandum of law, affidavits and other documents.
The plaintiff filed a motion in opposition, along with
her own affidavit. On April 23, 2014, following a hearing
on the motion, the court rendered summary judgment
in favor of the defendant on statutes of limitations
grounds. The plaintiff then filed a motion to reargue and
reconsider. On June 27, 2014, the court held a hearing on
the plaintiff’s motion, but declined to reconsider its
judgment. This appeal followed. Additional facts will
be set forth where necessary.
The plaintiff first claims that the court improperly
rendered summary judgment in favor of the defendant
because there was a genuine issue of material fact
regarding when she became aware of the defendant’s
alleged fraud. She contends that, although she was
aware that there had been a fraud perpetrated against
her checking account in 2003 or 2004, she was unaware,
until 2009, that an employee of the defendant had a
hand in the alleged fraud. She argues that it was only
then, in 2009, when certain facts were revealed to her
by a fellow inmate, and that, therefore, the court’s con-
clusion that various statutes of limitations had run on
her claims was incorrect as a matter of law pursuant
to General Statutes § 52-595.3
The defendant argues that the plaintiff submitted only
her own affidavit that was filled with inadmissible hear-
say regarding the alleged 2009 information she allegedly
received from a fellow inmate regarding an unnamed
employee of the defendant.4 It further argues that the
plaintiff failed to produce an affidavit from this inmate,
and she failed to produce any type of admissible evi-
dence regarding the defendant’s alleged knowledge or
concealment of a fraud perpetrated against the plain-
tiff’s checking account by one of its employees. Accord-
ingly, the defendant argues, the court could not consider
the hearsay evidence, and, there being no evidence to
support a tolling of the statutes of limitations, the court
properly rendered summary judgment in favor of the
defendant.5 We agree with the defendant.
‘‘The standards governing [an appellate tribunal’s]
review of a trial court’s decision to grant a motion for
summary judgment are well established. Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered 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. . . . [T]he scope of our review of the trial
court’s decision to grant the [defendant’s] motion for
summary judgment is plenary. . . . [I]n the context of
a motion for summary judgment based on a statute of
limitations special defense, [the defendant] typically
[meets its] initial burden of showing the absence of a
genuine issue of material fact by demonstrating that
the action had commenced outside of the statutory
limitation period. . . . When the plaintiff asserts that
the limitations period has been tolled by an equitable
exception to the statute of limitations, the burden nor-
mally shifts to the plaintiff to establish a disputed issue
of material fact in avoidance of the statute. . . . Put
differently, it is then incumbent upon the party opposing
summary judgment to establish a factual predicate from
which it can be determined, as a matter of law, that a
genuine issue of material fact exists. . . .
‘‘Thus, to toll a statute of limitations by way of our
fraudulent concealment statute, a plaintiff must present
evidence that a defendant: (1) had actual awareness,
rather than imputed knowledge, of the facts necessary
to establish the [plaintiff’s] cause of action; (2) inten-
tionally concealed these facts from the [plaintiff]; and
(3) concealed the facts for the purpose of obtaining
delay on the [plaintiff’s] part in filing a complaint on
their cause of action.’’ (Citations omitted; internal quo-
tation marks omitted.) Iacurci v. Sax, 313 Conn. 786,
799–800, 99 A.3d 1145 (2014).
In this case, the defendant properly filed special
defenses, including statutes of limitation defenses,
which the plaintiff simply denied. It is undisputed that
the plaintiff’s causes of action were filed seven to eight
years after the alleged fraud on her checking account,
although she alleges that the facts of the defendant’s
involvement were concealed from her until 2009. Under
any of the applicable statutes of limitations, the causes
of action were untimely. See General Statutes §§ 42-
110g (f) (‘‘[a]n action under this section may not be
brought more than three years after the occurrence of
a violation of this chapter’’) 52-576 (a) (‘‘[n]o action . . .
on any simple or implied contract, or on any contract in
writing, shall be brought but within six years after the
right of action accrues’’) and 52-577 (‘‘[n]o action
founded upon a tort shall be brought but within three
years from the date of the act or omission com-
plained of’’).
The defendant moved for summary judgment, in part,
on statutes of limitations grounds. With its motion, the
defendant filed various affidavits and exhibits, includ-
ing a copy of its objections and responses and its supple-
mental responses to the plaintiff’s interrogatories. In
those direct responses, which were properly sworn and
notarized, the defendant averred, in relevant part: (1)
‘‘[N]o Webster [Bank] employee of the 80 Elm [Street]
. . . branch . . . was terminated during the years
2003, 2004, 2005 or 2006 in connection with the inappro-
priate use or sale of customer checking account infor-
mation’’; (2) ‘‘[N]o Webster [Bank] employee of the 80
Elm [Street] . . . branch . . . was charged by or
reported to authorities for criminal conduct relating to
customer checking account information use or sales
during the years 2003, 2004, 2005 or 2006’’; (3) ‘‘Webster
[Bank] did not notify any client/customers of any charge
by authorities against any Webster [Bank] employee for
criminal conduct relating to the sale or use of checking
accounts in the 80 Elm [Street] . . . branch . . .
because no such charges were ever made’’; and (4) ‘‘the
plaintiff’s personal information relating to the checking
account at issue in this litigation was never wrongfully/
unlawfully accessed by any Webster [Bank] employee.’’
The plaintiff objected to the defendant’s motion for
summary judgment and argued that the defendant
fraudulently had concealed its knowledge that one of
its employees was involved in the alleged fraud against
the plaintiff’s checking account, and that the applicable
statutes of limitations were tolled as a result of this
concealment. In support of her opposition to the defen-
dant’s motion for summary judgment, the plaintiff relied
on her own self-serving affidavit.6 See Bednarz v. Eye
Physicians of Central Connecticut, P.C., 287 Conn. 158,
174–75, 947 A.2d 291 (2008) (plaintiff’s self-serving affi-
davit insufficient to surmount motion for summary judg-
ment). Our review of the contents of this affidavit,
however, reveals that, even if we consider all of the
self-serving averments therein, the affidavit provides
no information as to the defendant’s alleged conceal-
ment of any purported fraud by one of its employees.
In her affidavit, the plaintiff averred, in relevant part:
the plaintiff was not the woman who had made the two
$10,000 deposits and who was depicted in a photograph
supplied by the defendant; the plaintiff met a fellow
inmate who told her that she knew about the plaintiff’s
criminal case involving the defendant and that this
inmate and another woman were coconspirators in
some identity theft cases; the inmate told her that an
employee at the 80 Elm Street branch of the defendant
had sold this inmate and the other woman personal
identifying information and account information on the
defendant’s customers; and the plaintiff reported this
information to her attorney. The affidavit is devoid of
a single fact that would demonstrate any concealment
by the defendant.
To toll the statutes of limitations, the plaintiff bore
the burden of establishing the existence of a genuine
issue of material fact as to the defendant’s knowledge
and concealment of its employee’s alleged involvement
in the purported fraud against the defendant’s checking
account. See Iacurci v. Sax, supra, 313 Conn. 799–800;
see also Macellaio v. Newington Police Dept., 145 Conn.
App. 426, 433–34, 75 A.3d 78 (2013) (plaintiff’s bare
assertions that defendant fraudulently concealed facts
necessary to support plaintiff’s cause of action, without
admissible evidence, insufficient to raise genuine issue
of material fact required for tolling statute of limitations
under fraudulent concealment doctrine). The plaintiff
in this case failed to provide any evidence that would
demonstrate such a dispute of material fact. This lack
of evidence, combined with the defendant’s sworn
exhibits in support of its motion for summary judgment,
support the court’s conclusion that summary judgment
was appropriate in this case on the ground that the
statutes of limitations had run. There was no evidence
before the trial court that would support a tolling of
the limitations period.
The plaintiff also claims that the court abused its
discretion in denying her motion to reconsider. She
argues that the court did not appreciate fully her con-
tention that she did not become aware of the involve-
ment of the defendant’s employee in the fraud against
her checking account until 2009, and that this date
should control for statutes of limitations purposes.
Because we conclude that the defendant’s motion for
summary judgment properly was granted, there is no
need for us to review the appropriateness of the court’s
denial of the plaintiff’s motion for reconsideration. Val-
entine v. LaBow, 95 Conn. App. 436, 452–53, 897 A.2d
624 (‘‘[b]ecause we conclude that [the] motion for sum-
mary judgment properly was granted, the court did not
abuse its discretion in denying the defendant’s motion
to reconsider or her motion to reargue’’), cert. denied,
280 Conn. 933, 909 A.2d 963 (2006); Vogel v. Maimonides
Academy of Western Connecticut, Inc., 58 Conn. App.
624, 631, 754 A.2d 824 (2000) (‘‘[b]ecause we conclude
that the motion for summary judgment properly was
granted, the court did not abuse its discretion in denying
the plaintiff’s motion to reargue and for reconsid-
eration’’).
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the appendix to the plaintiff’s appellate brief does not
comply with Practice Book § 67-8. The appendix is missing many relevant
documents, including the plaintiff’s complaint, the defendant’s answer and
special defenses, the defendant’s motion for summary judgment, the plain-
tiff’s objection to the defendant’s motion for summary judgment and its
accompanying affidavit, and the plaintiff’s motion to reconsider. The defen-
dant has provided some of missing documents in its appendix. Nevertheless,
because the missing documents are available to the court via our online
system, we will review the plaintiff’s claims despite the failure to comply
with our rules of practice.
2
The defendant submitted the affidavit of Michael R. Denison, an assistant
state’s attorney, who averred that the case against the plaintiff was nolled
because she agreed to plead guilty to felony charges in an unrelated case,
and she was sentenced to a period of incarceration in that case, which was
to be served consecutive to the prison sentence she already was serving in
another unrelated case.
3
General Statutes § 52-595 provides: ‘‘If any person, liable to an action
by another, fraudulently conceals from him the existence of the cause of
such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’
It does not appear, however, that the plaintiff raised this statute before
the trial court, nor that the trial court considered it.
‘‘The continuing course of conduct doctrine is a matter that must be
pleaded in avoidance pursuant to Practice Book § 10-57; Bellemare v.
Wachovia Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d 335 (2006),
aff’d, 284 Conn. 193, 931 A.2d 916 (2007); as is the doctrine of fraudulent
concealment; see Bound Brook Assn. v. Norwalk, 198 Conn. 660, 661, 504
A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).
Practice Book § 10-57 directs that the matters in avoidance of affirmative
allegations in the answer must be specifically pleaded in the reply.’’ Macellaio
v. Newington Police Dept., 145 Conn. App. 426, 430, 75 A.3d 78 (2013).
In Macellaio, however, although the plaintiff had failed to plead in avoid-
ance, he raised the issue of tolling in his reply to the defendant’s special
defenses, ‘‘albeit imperfectly,’’ and in his motion in opposition to the defen-
dant’s motion for summary judgment. Id. The defendant did not raise a
timely objection to the procedural defect, and, on appeal, we determined
that because the issue had been placed before the trial court, and the
defendant had not timely objected, it was proper to consider the matter.
In this present case, the plaintiff has raised § 52-595 on appeal, and the
defendant has briefed the applicability of the doctrine of fraudulent conceal-
ment, although not mentioning § 52-595 specifically or objecting to our
consideration of the issue despite the procedural irregularity. Because our
review is plenary, and this issue is fully briefed by both sides, we will
consider it. See generally id., 430–31 (considering issue of fraudulent conceal-
ment despite plaintiff’s failure to plead in avoidance and defendant’s claim
that plaintiff waived issue where plaintiff repeatedly, ‘‘albeit imperfectly,’’
addressed tolling of statutes of limitations before trial court).
4
‘‘Hearsay means a statement, other than one made by the declarant while
testifying at the proceeding, offered in evidence to establish the truth of
the matter asserted. . . . Hearsay is generally inadmissible . . . and there-
fore when deciding a motion for summary judgment a court may not consider
material that would be hearsay at trial.’’ (Citations omitted; internal quotation
marks omitted.) Walker v. Housing Authority, 148 Conn. App. 591, 600, 85
A.3d 1230 (2014).
5
Although the trial court did not specifically state that the plaintiff’s
affidavit contained inadmissible hearsay, it, nonetheless, held that the plain-
tiff failed to establish a genuine issue of material fact as to the running of
the limitations period.
6
Page one of the plaintiff’s affidavit is not contained in the court record,
and the plaintiff has not provided a copy of this document in her appendix.
The defendant has provided a copy of the document in its appendix, but it,
also, is missing page one.