Tavana v. Town of West Hartford, No. Cv 92 0511221s (Oct. 20, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] RULING ON DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT The issues raised in the defendant's Second Motion for Summary Judgment dated September 14, 1995 were decided by Judge Hammer on April 25, 1993. Judge Hammer denied the summary judgment as to count three, the nuisance count, citing the case of D'Anthony v. Cheshire, 3 Conn. L. Rptr. 646, May 6, 1991.

The reasons given by the defendant for revisiting those issues in this Second Motion for Summary Judgment is that Judge Hammer denied the nuisance claim without written opinion and that evidence adduced through discovery engaged in after Judge Hammer's decision together with recent caselaw make it clear that the plaintiff cannot prevail on his nuisance claim CT Page 11959 against the Town.

In its memorandum in support of its second Motion for Summary Judgment the defendant has cited no cases which have come down since D'Anthony. D'Anthony deals with the issue of a positive act by the municipality.

The defendant repeats in his second Summary Judgment Motion and supporting brief that the plaintiff cannot prove the positive act element and asks this court to find as a matter of law that the testimony of plaintiff's expert makes it clear that there is no other finding that could be made. In light of D'Anthony we do not agree.

Judge Hammer's decision of April 25, 1993 is the law of the case and will not be disturbed by this court.

Mary R. Hennessey, Judge