Benjamin, Gold & Troyb, P.C.

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John J. Bria et al. v. Katie Hanscom

Docket Number: X05CV065000595S

Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford

File Date: March 23, 2009

Benjamin, Gold & Troyb, P.C., representing the Plaintiff, John J. Bria, Jr., et al.


NOTE: This decision is edited for brevity.

On Jan. 16, 2004, the plaintiff's decedent, John J. Bria, III (Bria), age 19, died of a drug overdose in the basement bedroom of the Greenwich home he John Briashared with his parents, the plaintiffs John Bria, Jr. and Margaret Bria. At various times during the last twelve hours or so of his life, going back to the evening of January 15, 2004, Bria was in the company of several of his friends and acquaintances, all of whom were invited guests in Bria's home. Three of those defendants have now moved for summary judgment.

The allegations against each of these defendants sound in three counts. They are negligence, reckless and wanton misconduct, and the intentional wrongful purveying of drugs to Bria. The defendants are alleged to have entered Bria's bedroom between the hours of 9:00 p.m. and 12:00 midnight on January 15, 2004. While in Bria's bedroom, the defendants allegedly provided Bria with prescription drugs, and/or cocaine and/or heroin, which Bria inhaled or ingested, becoming visibly intoxicated and impaired as a consequence. In his impaired state, Bria is alleged to have inhaled or ingested heroin resulting in his death. The defendants are alleged to have known or should have known that these drugs were inherently dangerous and could be lethal to Bria, and they thereby created a dire medical emergency for Bria and failed to make reasonable efforts to provide assistance to Bria, who died as a result of the defendants' negligence, intentional conduct, and/or wanton and reckless misconduct.


Each defendant claims they are entitled to summary judgment. They argue that there is no genuine issue of material fact as to proximate cause here, in that Bria voluntarily ingested all the substances he did, or that no evidence exists that a defendant specifically provided any of the drugs that directly caused Bria's death.

Plaintiffs object to the motions for summary judgment because they assert there are issues of material fact regarding proximate cause between each defendant's conduct and the death of Bria. Plaintiffs also assert the existence of a duty owed by the defendants to Bria, a duty which was breached here. As to the issue of a duty, the court finds the recent opinion of the Connecticut Supreme Court in Pelletier v. Sordoni/Skansa Construction Co., 286 Conn. 563 (2008), to be illuminating. "The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . ."

The court concludes, as a matter of law, that the defendants had a legal duty to the plaintiff under principles of common-law negligence because the plaintiff's injury-death by drug overdose-was arguably foreseeable. Ordinary persons in the defendants' positions, knowing what they knew or should have known, could have foreseen that the plaintiff might be harmed because of the drugs they furnished. The factual sufficiency of the negligence allegations are for the jury to decide. "The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue." Archambault v. Soneco/Northeastern, 287 Conn. 20, 33, (2008).

As to the intentional wrongful purveying of drug allegations against these defendants, in violation of criminal law, and their assertion that dismissal is warranted. However, the allegations under consideration here sound not in negligence, but in intentional tort. There is no allegation that any defendant here intentionally caused the death of Bria. Rather, they are alleged to have intentionally and wrongfully provided Bria with drugs in violation of the criminal law, and in his impaired state, Bria inhaled or ingested heroin, and Bria therefore died as a result of the unlawful provision of drugs. Defendants also argue that these criminal drug statutes do not create a separate private right of action. However, it would be illogical for the court to conclude that intentional and illegal conduct, in the same vein, could not be a possible basis for liability to be determined by a jury. Accordingly, the motions for summary judgment as to the counts alleging the intentional wrongful purveying of drugs are denied.

The plaintiff's decedent died here of a drug overdose at a "party" he hosted in his home where illegal drugs were consumed and shared over several hours, a gathering where all present are alleged to have participated to a greater or lesser degree. Human nature being what it is, it would be neither surprising nor wholly unexpected if the accounts of the survivors (now defendants) exhibited a tendency toward minimization, that is, minimizing either the extent of their own respective involvement and/or the proportionate share of a co-defendant, or any participation in the events leading up to that tragic outcome. The court is merely pointing out the obvious. The mechanism uniquely suited to resolve these issues of fact is a jury trial, and the weight that fact finder chooses to give any evidence, direct or circumstantial, in light of the great search engine for truth that can be cross examination at trial.

Accordingly, the motions for summary judgment by each defendant are hereby denied.


Doreen Mikoshi et al. v. Probate Appeal

Docket Number: FSTCV074011504S

Judicial District of Stamford-Norwalk at Stamford

May 20, 2009

Benjamin, Gold & Troyb, P.C. representing the Appellants, Doreen Mikoshi, et al.


NOTE: This decision was upheld following appeal, see, 124 Conn. App. 536 (2010). Decision edited for brevity.

The appellant, Doreen L. Mikoshi, both individually and in her capacity as the executrix, appealed to the Superior Court from the order of the Probate Court on the final accounting, adding monies in the LaJolla Bank account (Account) as an asset to the Estate of Vincent J. Cappiello (Estate), the decedent.

"An appeal from a Probate Court to the Superior Court is not an ordinary civil action. When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court . . .


General Statutes §36a-290 states in relevant part: "(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.

"(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds."

Our Supreme Court has held that §36a-290 provides that "when an account is created in the names of two or more people, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them . . . Thus, under this statute, a bank is authorized to release up to the entire balance of a joint account to each and any co-holder who so demands." Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 349-50 (1997).

In the present case, the parties do not dispute that the Account was a joint account. Accordingly, pursuant to §36a-290(a), the appellant permissibly withdrew any and all monies from the Account.


Alternatively, assuming arguendo, that the appellant was not permitted to take the funds out of the joint account, the respondent still would not be entitled to the monies, as the decedent made a valid inter vivos gift to the appellant. "When an estate is a party, the burden is on the person claiming the gift to prove the claim by clear and satisfactory proof."  Dalia v. Lawrence, 226 Conn. 51, 70 (1993).

In the present case, there is sufficient evidence to find that this was a valid gift made to the appellant. The court finds the appellant's testimony was credible as to the following facts:

The appellant lived at her parents' house, helping out around the house and taking care of her mother and father since 1995, of which her father was appreciative, as he was working when his wife, who passed away in 1996, was sick with cancer. Once her father got sick, the appellant visited him every day at Stamford Hospital, where he stayed in a private room. On June 18, 2001, the date the gift was made, she was visiting the decedent alone for one or two hours. On said date, the appellant and her father had a conversation. The appellant was sitting bedside, while her father was sitting upright in his bed. Throughout the conversation the appellant and her father made eye contact. The decedent appeared to be able to hear clearly, and he was audible to the appellant. During this conversation, the decedent talked about his expenses with her, and told her that she was to withdraw the money from the joint account and put it into a separate account in her name. The decent told the appellant that the contents of the joint account were hers, and he also spoke about the check book in both of their names, that she was to pay any outstanding and future bills. After the visit on June 18, 2001, the appellant went to bank, withdrew the money from the account, and deposited it into an account in her own name. On June 19, 2001, she again visited with her father, who appeared to understand her and whom she could understand, and informed him of the money transfer, to which he responded that she had done what he wanted her to do. The decedent subsequently passed away on June 21, 2001.

Based on the appellant's credible testimony, the court finds this to be clear and satisfactory proof that the gift was valid.


Accordingly, the appellant was permitted to withdraw the funds from the Account. Alternatively, a valid gift was made by the decedent to the appellant. Wherefore, judgment may enter in favor of the appellant in accordance with this decision.


James Stafford et al. v. Rita Reagan et al.


Judicial District of Stamford-Norwalk at Stamford

July 28, 2009

Benjamin, Gold & Troyb, P.C., representing Defendant Mark O'Brien Custom Homes, LLC.


NOTE: This decision is edited for brevity.

The plaintiffs in this case, James W. Stafford and Caroline G. Stafford, seek judgment quieting title to a parcel of land situated in the Old Greenwich section of Greenwich. Their claim is based upon the principle of adverse possession. The defendants are Rita Reagan and Mark O'Brien Custom Homes, LLC (O'Brien).


The court finds the following facts. In 1968, William H. Reagan and Barbara W. Reagan (the Reagans) owned adjacent houses at 184 and 186 Shore Road in Old Greenwich, each being a single-family residential dwelling. In 1968 the Reagans rented the 184 Shore Road house to the plaintiffs. Thereafter, the Reagans subdivided their property at 184 and 186 Shore Road into three lots. These three lots are depicted on at least three renditions of a survey in evidence as exhibits 2, E and I, entitled "Property of William H. and Barbara W. Reagan." All three lots have their direct access on Shore Road. On June 2, 1972 the Reagans conveyed to the plaintiffs Lot #2 on the map being 184 Shore Road, and containing 13,878 square feet together with the single-family house they had been renting from the Reagans. The Reagans retained title to Lot #1, 186 Shore Road, containing their home and 14,660 square feet, and to Lot #3, a parcel of 14,300 square feet, extending in a triangular manner behind Lot #1 and Lot #2 (the plaintiffs' property) and containing an old shed. On two of the three survey maps mentioned, exhibit 2 and exhibit E, a dotted line is shown from the southeasterly terminus of the boundary line between Lots #1 and #2, southeasterly to the property of one, Burnett. The dotted line has no dimension and was concededly placed on the exhibits by counsel for the plaintiffs, who also placed the words "ADVERSE POSSESSION" on the triangular parcel, created by the dotted line, behind the plaintiffs' property. Counsel for the plaintiffs claims that the dotted line represents approximately 70 feet and meets the southeasterly boundary of Lot #3, approximately 100 feet southwesterly of its terminus. No dimension for the dotted line is shown on any map or survey, and there was no evidence as to the size of the "ADVERSE POSSESSION" parcel, either in square feet or by acreage.

The plaintiff, Mr. Stafford, began mowing the lawn on the disputed parcel in 1968, when he first rented the house at 184 Shore Road, and continued to do so after he and his wife purchased the property on June 2, 1972. They allege that their adverse possession claim began on that date in 1972. In addition to mowing the lawn on the disputed parcel, Mr. Stafford raked the leaves, covered an old well and planted a flowering Sharon bush around it, cut down trees which had fallen on the shed, removed other trees as well, and generally kept his own property and the disputed piece well maintained. After Mr. Reagan's death, on occasion, Mr. Stafford cut the lawn on the Reagans' property, Lot #3, as well as the adverse possession parcel and the backyard of the Reagans' house on Lot #1, as a neighborly gesture and perhaps because it improved the look of the Reagans' property in the eyes of Mr. and Mrs. Stafford. The shed on the disputed parcel was used by Mr. Reagan until he died in 1981, and he would walk across the lawn to and from the shed undisturbed by the plaintiffs. He kept equipment and tools in the shed, but because of his elderly and arthritic condition, his use of them may have become limited over the years. Mr. Stafford also stored some of his possessions in the shed along with Mr. Reagan's.

As noted above, Mr. Reagan passed away in 1981. Thereafter, perhaps as late as 1955, Mr. Reagan's possessions were removed from the shed and Mr. Stafford began storing his belongings therein exclusively.

During the trial, Mr. Stafford testified that Mrs. Reagan had never given him permission to use the shed. He also testified that in 1995 he would have removed his personal property from the shed if Mrs. Reagan asked him, because he was not claiming the disputed parcel as his own. It is undisputed that Mr. Stafford trimmed his side of the privet hedge on the boundary line between the Burnett property on the southeast and the disputed parcel, but did not erect a fence or place a hedge or other obstruction on the dotted adverse possession line splitting Lot #3. There was no natural demarcation of the line save the mowing line created by Mr. Stafford.

"To establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right, with the intent to use the property as his [or her] own and without the consent of the owner." Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636 (2008); Connecticut General Statutes §52-575.

Furthermore, "[a] finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist . . . The burden of proof is on the party claiming adverse possession." Eberhardt v. Imperial Construction Services, LLC, 101 Conn.App. 762, 767, cert. denied, 284 Conn. 904 (2007).

From the date of the plaintiffs' purchase of their home from the Reagans in 1972, to the time of Mr. Reagan's death in 1981, both Mr. Reagan and the plaintiffs used the shed; Mr. Reagan had unfettered access to come upon the disputed parcel and to use his own shed for storage. The exclusive use element of the principle is not demonstrated during the 1972-1981 time period.

The deceased Mr. Reagan's personal property was removed from the shed, and in or around 1985, Mr. Stafford's possession were placed there exclusively. There was never any point in time, from that day forward, that the plaintiffs claimed adverse possession of the property. In 1995, according to the testimony of Mr. Stafford, he would have removed his possessions from the shed if Mrs. Reagan had requested it, because she was the owner of the property. The plaintiffs both signed, in June 1995, more than one affidavit swearing that there were no changes in the survey maps in evidence, and that no building encroached on their property, making no claim of ownership of the adverse possession parcel. "In determining whether entrance on another's property amounts to an ouster, or rather, a mere trespass, the intention guides the entry, and fixes its character. A rule that disqualifies permissive use as adverse has importance not only when the true owner has affirmatively authorized the claimant's possession, but also when the possessor disclaims an intent to violate the owner's rights." Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640 (2006). By all the statements made by Mr. Stafford, he recognized the title of Mrs. Reagan and disavowed any claim of right to gain title to her land by adverse possession, although he had opportunities to affirm any such intent. Even in the oral agreement with Mrs. Reagan in 1997 concerning the mowing of her lawn in exchange for storing a car in her garage, he failed to take advantage of an obvious opportunity to declare his adverse rights to the area where he was already mowing the lawn. Again, on April 18, 2000 he was notified by the defendant, Rita Reagan, that Mrs. Reagan (then in an in-patient therapy establishment in Fairfield), reiterated her permission for the plaintiff's car in her garage in exchange "for your mowing her grass until further notice," and again Mr. Stafford passed on an opportunity to clarify his hostile possession.

The plaintiffs claim adverse possession from June 2, 1972 to the date of trial. From 1972 to 1981, however, their occupation was not exclusive. From 1985, any fifteen-year period accruing was interrupted in 1995 by Mr. Stafford's disavowal of any title by adverse possession or any claim of right thereto. If any adverse use began again after the 1995 interruption, the 15-year clock started anew. Pallin v. Johnson, 79 Conn.App. 740, 746 (2003). Use by the plaintiffs terminated after the disputed parcel was conveyed to the defendant, Mark O'Brien Custom Homes, LLC in October 2007. Even to the trial date of this case, March 2009, no uninterrupted period of fifteen year's use by the plaintiffs has occurred. The plaintiffs failed to prove, by clear and convincing evidence, their claim of adverse possession. They have failed to prove, by the standard required, that they have ousted the owners of possession and kept them out without interruption for 15 years by an open, visible and exclusive possession under a claim of right with the intent to use the property as their own and without the consent of the owner. Schlichting v. Cotter, supra, 109 Conn.App. 361, 364-65. The plaintiffs' prayer for judgment quieting and settling title to the disputed parcel is denied. Judgment may enter in favor of both defendants on the complaint.

So Ordered.


Edward Mehan v. City of Stamford, et al, 5389 CRB-7-08-10 (2009);
Edward Edward Mehan v. City of Stamford, et al, 127 Conn. App. 619 (2011);
Edward Mehan v. City of Stamford, et al, 301 Conn 911 (2011).

Benjamin, Gold & Troyb, P.C. representing the plaintiff, Edward Mehan.

NOTE: these three decisions are consolidated and edited for simplicity and brevity.

Edward Mehan (plaintiff) suffered chest pains while fighting a fire for the city of Stamford (defendant) and subsequently was taken to Stamford Hospital for treatment. The plaintiff's treating cardiologist diagnosed the injury as an "acute coronary syndrome." The plaintiff was subsequently found to be physically unfit for active duty as a firefighter.

The plaintiff filled out a form 30C notice in which he entered his personal information but did not fill out the ''injury section'' or sign the form. The plaintiff gave the partially completed form to the assistant fire chief and explained to him what happened. The assistant fire chief then completed the form and signed it. However, the form apparently never was received by the city's human resources department.

The city denied plaintiff all workers' compensation benefits. The plaintiff initiated proceedings against the city and a formal hearing (trial) was held. On October 2, 2008, the commissioner denied the plaintiff's claim. On October 3, 2008, the plaintiff's attorneys filed a motion to correct and for reconsideration. On October 10, 2008, the commissioner granted the motion for reconsideration, issued a decision vacating its prior denial, and found for the plaintiff. On October 16, 2008, the commissioner issued a decision concluding that the plaintiff's acute coronary syndrome, suffered as a result of the work incident, was a compensable work related injury that aggravated his preexisting coronary artery disease. The commissioner further concluded that the plaintiff was entitled to all lawful workers' compensation benefits.

The city first appealed to the workers' compensation review board (board) claiming that the commissioner erred because notice to the city was insufficient and that the injury was not "work related." The board disagreed and found that the commissioner had sufficient evidence to conclude that the notice was adequate, and that the plaintiff's treating physician was credible when he testified that the plaintiff's firefighting work precipitated his acute coronary syndrome.

The city then appealed to the Appellate Court on the same grounds. The Appellate Court upheld the rulings of the commissioner and the board.

In its decision, the Appellate Court wrote that the commissioner made findings regarding the execution and delivery of the notice. It was the assistant chief's job to represent the department and its employees with matters involving the defendant's human resources department, and to deliver 30C forms to the human resources department. Historically, the defendant accepted these forms for processing from the human resources department, the town clerk's office and the law department, thus establishing flexibility in the defendant's service procedures. The timely notice of the plaintiff's claim to the assistant chief constituted timely notice of the claim to the defendant, and the problem with the form getting to the human resources department did not deprive the defendant of timely notice of the plaintiff's claim. General Statutes § 31-321 provides in relevant part: ''Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail . . . .'' Regarding any defects in notice, § 31-294c (c) provides in relevant part that ''[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. . . .'' The Appellate Court then concluded that because the city did not formally deny plaintiff's claim in a timely manner, it was barred from contesting liability.

Additionally, the Appellate Court rejected the city's argument that the commissioner and board erred because the evidence did not support the conclusion that plaintiff's acute coronary syndrome was a substantial contributing factor in the aggravation of his preexisting coronary artery disease. The Appellate Court looked to the testimony of the treating cardiologist who stated, '' to a reasonable medical probability,'' plaintiff's exertion while fighting a fire precipitated his acute coronary syndrome and that the acute coronary syndrome aggravated his preexisting coronary artery disease.

The city filed a petition for certification to appeal yet again, to the Supreme Court of the State of Connecticut. After reviewing all of the papers for and against, the Supreme Court denied the city's petition, and Edward Mehan finally prevailed.


William Kosbob, et al. v. Washington Alvares, et al.

Docket Number: CV960153525S

Judicial District of Stamford-Norwalk at Stamford

October 11, 2001


This matter came before the court on September 26, 2001 as a hearing in damages. The plaintiff is the administrator of the estate of Mathew Kosbob, deceased, and the defendants against whom judgment is sought are Jarrell Crawford and Anthony Bellocchio.

The action arises out of an incident which occurred on July 28, 1995 when the defendants, in concert with two other youths, viciously assaulted the decedent and inflicted upon him serious injuries which eventually caused his death on November 23, 1998.

On the day of the incident, which occurred in an elementary school parking lot in Stamford, the attackers forced the decedent to his knees and repeatedly struck and kicked him, and while he lay on the ground, he continued to be beaten and kicked, and was struck on his head with a 40-ounce beer bottle. The injuries suffered by Mathew from this merciless meeting can only be described as unfathomable. He was confined to either a hospital or a rehabilitation facility from the day of the injury to the day of his death. Initially admitted to the trauma room at the Stamford Hospital, Mathew was neither conscious nor breathing on his own. His condition was diagnosed as critical and he was in a deep coma. By September 1995 he was transported to Gaylord Hospital where he remained deeply comatose. He was treated for infections and dehydration after returning to Stamford Hospital. He was then transferred to the Rehabilitation Hospital of Connecticut at Mount Sinai in Hartford. In October 1995 he underwent lumbar surgery. His body began to twist in spasms which were severe and uncontrollable. In November and December 1995, the plaintiff's decedent began to emerge from his coma, but contracted vein infections and blood clots. He received heavy antibiotics including Botulinum toxin injections in order to kill nerve endings and relieve his pain. In January 1996, surgery was performed, unsuccessfully, to cut and lengthen tendons. He began experiencing abdominal pain due to his contracting chronic pancreatitis.

In September through December 1997, his antibiotics were no longer keeping pace with his infections and fevers. He developed pneumonia and a partial collapse of the lung. He continued to suffer from abdominal problems, vomiting, lung congestion, skin breakdown and chronic pancreatitis. Morphine was used constantly for his pain. In March 1998, doctors operated twice on his abdomen for complications. In April, there were two more surgeries on his stomach. Morphine doses were now increased for the increasing pain. The patient began to gain weight for no known reason. He underwent five hours of surgery for his externally ruptured small intestine and spent three weeks in the critical care unit at St. Francis Hospital. In November 1998, Mathew's condition continued to decline, and finally, his breathing became more difficult and his last intravenous line became infected. With no available treatment left, the decedent died on November 23, 1998.

Medical costs for the care and treatment of the decedent exceeded 2.2 million dollars; however, the plaintiffs seek here only $100,000 for said expenses. A report by two economists demonstrate the net loss earning capacity for the decedent, at present value as of July 1, 2001 to be $2,057,958. The funeral expenses paid were $1,919. The plaintiffs also claim non-economic damages on behalf of the decedent, which the court in this case finds to be substantial.

In this case, the court awards just damages as follows:

Economic damage $2,159,877.00

Non-economic damages $4,000,000.00

Total damages $6,159,877.00

So Ordered.

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