Opinion
MMXCV126008540S
07-27-2016
Louis D. Corneroli v. Ronald W. Kutz et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Julia L. Aurigemma, J.
The defendants, Ronald Kutz and Kutz & Prokop, LLP, have moved for summary judgment on the grounds that the plaintiff failed to disclose an expert who can opine on the issue of causation. The plaintiff has objected to the summary judgment.
Factual and Procedural Background
Attorney Kutz represented the plaintiff, Louis Corneroli, in a probate matter and a related appeal to the Superior Court. The probate matter was heard by the Honorable Robert Randich, who issued a decision on February 28, 2008, which disallowed the plaintiff's claim as a creditor of the Estate of Salvatore D'Amico. The decision is set forth below.
After due hearing, THE COURT FINDS that:
Notice of hearing was provided in accordance with the order of notice issued by the court.
The court has held two (2) hearings and the parties have each submitted two briefs with supplements on the issues relevant to the instant motion. Based on everything presented to the court, the court makes the following findings. The decedent frequented tag sales in hopes of finding undervalued assets. At some point in 1978, he acquired for $3 a painting which turned out to be an original J.D. Sargent painting called " Carmencita Dancing" worth several million dollars. The problem encountered by the decedent was that he was unable to get the painting authenticated and thus was unable to realize the full value of the painting during his lifetime. At some point, the decedent's cousin, Louis Corneroli, began working with the decedent, driving him around and also becoming involved in his various projects, including the effort to authenticate the Sargent painting. Mr. Corneroli contends that he and the decedent had a partnership in which they agreed to work on matters together and equally split the profits realized from their activity. The estate of Salvatore D. D'Amico strenuously denies any such partnership. For the purposes of the instant motion, which seeks to deny the claim of Mr. Corneroli based on a lack of its being timely filed, the court will assume that such a partnership in fact existed.
After the decedent died, Mr. Corneroli took possession of the painting and entrusted it to Mark Borghi, who owned and operated an art gallery in New York and who was in a better position to have the painting authenticated than Mr. Corneroli. See Paragraph 39 of Complaint filed by Louis Corneroli against Mark Borghi, et al., dated March 23, 2003 in New York Supreme Court (the " Corneroli Complaint"). Unbeknownst to Mr. Corneroli, Mr. Borghi sold the painting to a Mr. Adelson, another art dealer who specialized in Sargent paintings, for approximately $1.2 million. Mr. Adelson turned around and sold the painting for millions more than what he paid for it, again without the knowledge of Mr. Corneroli. At some point, Mr. Corneroli learned of the sales of the painting and filed the Corneroli Complaint in New York, suing Mr. Borghi, Mr. Adelson and John Doe, the still unknown purchaser of the painting, alleging, inter alia fraud, conversion and breach of contract claims. Judge Ira Gammerman, of the Supreme Court of the State of New York, after hearing testimony from Mr. Corneroli on the Corneroli Complaint, found that Mr. Corneroli testified that he had an agreement with Mr. Borghi under which the parties were to divide the sales price of the sale of the painting with Mr. Borghi receiving half and Mr. Corneroli receiving half. Corneroli v. Borghi et al., Supreme Court of New York, Trial Term Part 27, July 16, 2003, Pages 357-58 (hereinafter referred to as " Corneroli Trial Transcript, Page "). Mr. Corneroli freely acknowledged during the trial that both the decedent while living and his estate had a 50% interest in the painting. Corneroli Trial Transcript, page 219. The Corneroli Complaint, however, alleged that Mr. Corneroli was the sole owner of the painting. See Comeroli Complaint, para. 57.
After hearing the testimony of Mr. Corneroli, the New York Court dismissed the case as to all parties except Mr. Borghi. It is crystal clear from the transcript that the claim against Mr. Adelson was dismissed " with prejudice ." See Corneroli Trial Transcript, page 363. The New York Court further found the potential recovery from Mr. Borghi in Mr. Corneroli's favor to be approximately $313,000, which was roughly one quarter of the sales price of the sale of the painting from Mr. Borghi to Mr. Adelson. See Corneroli Trial Transcript, page 361. Mr. Corneroli acknowledged that he received about that amount in either paintings or cash in July 2003 and that the parties thereafter returned to Connecticut to open an estate for the decedent so that the estate could pursue its share.
The administrators of the newly-opened Estate of D'Amico took a vastly different view of the history than Mr. Corneroli. Based on their belief that Mr. Corneroli had denied knowledge as to the location of the painting shortly after the death of the decedent and further had not disclosed that he had given the painting to the New York art dealer until shortly before the proceedings in New York occurred, the estate took the position that there never was any partnership and that Mr. Corneroli had absconded with the painting after the decedent died . The estate filed a lawsuit in federal court in December 2003, which suit was dismissed without prejudice. A new suit was filed in July 2005 in which the estate sued inter alia, Mr. Corneroli, Mr. Borghi and Mr. Adelson alleging that the painting had been stolen by Mr. Corneroli and that title never passed due to this fact . The estate sought a declaratory judgment that it was the owner of the painting, a replevin of the painting back to the estate and damages from Mr. Corneroli for his alleged misdeeds. Mr. Corneroli filed an answer with special defenses to the complaint in which he generally alleged that his actions were taken as a partner of the decedent and that he did not steal the painting. Mr. Corneroli did not, however, file a counterclaim or seek to join the plaintiff in its claims against the other defendants, including Mr. Adelson .
A two-day mediation to resolve the case occurred on December 11-12 at New Britain Superior Court. Counsel for Mr. Corneroli attended on the first day but did not return for the second day. The remaining parties reached an agreement on the second day which involved Mr. Adelson paying the plaintiff the sum of $2.4 million . In a lengthy agreement put on the record the plaintiff indicated that the settlement was subject to the plaintiff obtaining a release of Mr. Corneroli and the probate court approving the settlement as well. It does not appear any formal notice was provided to Mr. Corneroli of the settlement, however, his attorney was called in connection with executing a release, which was refused. The probate court hearing occurred and the settlement was approved by the probate court. The case against Mr. Corneroli was withdrawn. Thereafter, Mr. Corneroli, in reviewing the probate file, learned about the settlement amount for the first time. He filed a claim with the estate dated August 23, 2007 in which he stated that he was a partner with the decedent in attempting to get the painting authenticated and that their agreement was that any funds received as a result of getting the painting authenticated would be split equally and thus he was entitled to receive 50% of the 2.4 million settlement. See Proof of Claim letter of Louis Corneroli dated August 23, 2007. The instant Motion for Disallowance of Claim was filed on or about October 5, 2007, alleging that the claim was untimely on its face.
The analysis of this situation must begin with a discussion of partnership law. As discussed earlier, since the position of the estate is that the claim is unenforceable on its face, the court has to assume the claim of partnership by Mr. Corneroli is true for the purposes of disposing of this motion. The parties agree on the law as it pertains to partnerships and the effect of the death of one partner. In the absence of an agreement otherwise the death of a partner dissolves the partnership, and the legal ownership and right of control of the partnership assets vests in the surviving partner, which he holds however as a quasi trustee for the estate of the deceased partner. Casey v. Hurley, 112 Conn. 536, 152 A. 892 (1931). The surviving partner has a duty to liquidate the affairs of the partnership and to account to the representative of the deceased partner, and pay over to him the estate's share of the net partnership assets. Id. From this point the parties part paths, but the court believes the law applied to the facts of this case clearly sets forth the correct outcome.
In a sense, Mr. Corneroli's actions after the death of Mr. D'Amico track his responsibilities under the common law of partnership. If in fact a partnership existed, he was under a duty to gather the partnership assets, liquidate them, pay all partnership bills and then distribute the balance to the partners in accordance with each partner's interest. In effect, his attempts to get the painting authenticated and sold once authenticated do support the conclusion that he was acting as a surviving partner. While he did engage in some questionable acts, such as bringing the New York action in his own name claiming sole ownership of the painting and allegedly denying knowledge of the location of the painting to members of the decedent's family, when questioned under oath in the New York court he acknowledged the interest of the estate and that acknowledgment ultimately served to reduce what he would have recovered in the New York action if he continued to assert he was the sole owner of the painting.
The plain conclusion reached by this court, however, is that if in fact a partnership existed, the New York action represented the one opportunity it had to obtain a recovery in this matter against Mr. Adelson. The simple fact of the dismissal of the New York action against Mr. Adelson, with prejudice, indicates to the court that Mr. Corneroli's future opportunity to pursue a claim against Mr. Adelson, either individually or as part of a partnership, has been forever precluded . Counsel for Mr. Corneroli argues that the New York court never found that Mr. Corneroli was not a partner and while that may be true, it is of no moment because it did not matter. Whether Mr. Corneroli's arrangement with Mr. Borghi was one made in an individual capacity or in a partnership capacity, the effect would be the same, and that was that Mr. Corneroli (or his partnership, if one in fact existed) had no claim against Mr. Adelson. In this court's opinion, upon the conclusion of the New York litigation, the last remaining asset of any " partnership" was the $300,000 claim against Mr. Borghi which Mr. Corneroli testified to but which could not be the subject of any award by the court as the estate was not a party plaintiff in the action. Mr. Corneroli cannot claim any interest in that claim as he received his judgment in that amount against Mr. Borghi already .
While Mr. Corneroli argues that the claim pursued by the estate in the subsequent actions should be found to be a partnership asset, logic dictates otherwise. None of the claims of the complaint sound in partnership, in fact, quite the opposite, the complaint accuses Mr. Corneroli of absconding with the painting . Further, there is no question that the magnitude of the settlement paid by Mr. Adelson is a strong indication that he believed that a real possibility existed that the estate would be able to prove the allegations of its complaint. If Mr. Adelson had believed that there was a strong argument to make that Mr. Corneroli and the decedent were partners, he undoubtedly would have asserted that the New York dismissal should apply to bar the claim of estate as well as any partnership which existed would necessarily be bound by Mr. Corneroli's action as the sole surviving partner . It is not the place of this court to determine whether or not Mr. Adelson's judgment on the value of the case was high or low or right or wrong, but this court strongly believes that Mr. Adelson was entirely motivated by his fear that the judicial determination of the case would be that the painting was stolen . Such a consideration is further support of the court's conclusion that the New York litigation fully and finally resolved any issues of partnership assets and that the fruits of the litigation brought thereafter by the estate in no way can be determined to be considered a partnership asset as a matter of law.
The administrators move to deny this claim on the basis of timeliness. However, the court finds that the problem with the claim of Mr. Corneroli is not one of timeliness but rather that he is claiming an interest in a partnership asset which, as a matter of law, is not a partnership asset . Accordingly, the court grants the motion of the administrators to disallow the claim not on the basis of timeliness but rather because the asset in question is not a partnership asset against which Mr. Corneroli can make a claim .
While it was not made clear to the court why the New York court took this action, it would appear that the court likely was relying on Section 42a-2-403(2) of the Uniform Commercial Code, which provides that the entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entrusted to a buyer in the ordinary course of business.
Probate Court Decision, Randich, Acting Judge, February 28, 2008. Emphasis added.
To summarize the decision of the Probate Court from which Mr. Corneroli now appeals, it found that the $2.4 million was obtained from an art dealer, Mr. Adelson, in a lawsuit by the Estate of Salvatore D'Amico, which claimed that Mr. Corneroli had stolen the painting . It further found that it was probable that Mr. Adelson paid the $2.4 million in settlement only because he believed that the Estate could prove that Corneroli had stolen the painting. Moreover, Mr. Corneroli had already recovered $300,000 in his New York lawsuit where his (or the partnership's) claim against Mr. Adelson had been dismissed with prejudice. Based on the foregoing, the probate court found that even if a partnership existed, the $2.4 million was not a partnership asset and, therefore, Mr. Corneroli had no claim to any part of it.
The defendants filed an appeal of the Probate Court's decision on behalf of Corneroli. That appeal was dismissed as untimely. By decision dated July 28, 2009, the Appellate Court affirmed the dismissal. See Corneroli v. Estate of D'Amico, 116 Conn.App. 59, 975 A.2d 107 (2009).
This action sounds in legal malpractice. In his fourth amended complaint dated October 26, 2015, the plaintiff alleges that " Had the defendants filed a timely appeal, the plaintiff would have had a reasonable basis for a successful outcome of the de novo appeal." Fourth Amended Complaint ¶ 21.
Discussion of the Law and Ruling
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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 589 (2003); Mytych v. May Dep't Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book § § 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is " designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services." Myers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C, 311 Conn. 282, 291, 87 A.3d 534 (2014). In a legal malpractice action a plaintiff must prove that an attorney-client relationship existed and that the client sustained legal injury or damage that was proximately caused by the attorney's wrongful act or omission. Lee v. Harlow, Adams and Friedman, P.C., 116 Conn.App. 289, 302, 975 A.2d 715 (2009). " As to causation: In legal malpractice actions, the plaintiff typically proves that the . . . attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent." Law Offices of Robert C. Walsh, LLC v. Natarajan, 124 Conn.App. 860, 864, 7 A.3d 391 (2010). Therefore, in a legal malpractice case the plaintiff must produce an expert opinion that the breach of the professional standard of care was a proximate cause of the plaintiff's injuries. Dixon v. Bromson & Reiner, 95 Conn.App. 294, 299-300, 898 A.2d 193 (2006); Beecher v. Greaves, 73 Conn.App. 561, 808 A.2d 1143 (2002).
Where a plaintiff fails to provide sufficient expert testimony on the issue of proximate cause, summary judgment is proper. Reynolds v. Pullman & Comley, LLC, Conn.Super., 2006 WL 1075103 at *4 (April 4, 2006, Gilardi, J.) (citing Vona v. Lerner, 72 Conn.App. 179, 189-92, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).
Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation . . . To be reasonably probable, a conclusion must be more likely than not . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony. (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 672, 800 A.2d 1160 (2002).Drew v. Backus, 77 Conn.App. 645, 663, 825 A.2d 810 (2003).
In order for the plaintiff to create a genuine issue of fact regarding causation, he must demonstrate with expert testimony that he " more likely than not" would have prevailed in a trial de novo before the Superior Court had the probate appeal not been dismissed.
The plaintiff has disclosed Attorney John Berman on the issue of standard of care and probate practice and procedure. At his deposition, Attorney Berman testified as follows:
Q. Okay. My understanding is one of the bases of your disclosure is that had the appeal been timely file-
A. Yes.
Q.-that Judge Randich's decision would have been reversed or a different result would have occurred?
A. Well, we don't know that. We certainly know we would have had a day in court. I'm not a hundred percent at all. I would say less than in term of the merits of the claim.
Q. Okay.
A. So-but I certainly know he would have got a day in court, a chance to present his case-
Q. Okay.
A.-put witnesses on. And who knows? Maybe he had a good settlement. I would be surprised if it weren't settled, but that didn't happen because of-
Q. Okay. And my questions are relating to as if the appeal was presented to the superior court. Right? The superior court would be presented likely with the same or similar evidence that Judge Randich had before him?
A. That, and much other, I assume.
Q. Okay.
A. Yes. But certainly what Judge-Judge Randich's evidence would have been there because presumably there were good lawyers representing the defense, yes.Deposition of John Berman, pp. 122-23.
Upon further questioning, Attorney Berman conceded that he could not express any opinion on whether the decision of the Superior Court would have differed from Judge Randich's decision:
Q. Do you have an opinion as to whether it is more probable than not that the superior court would have decided in Mr. Corneroli's favor?
A. I do not have. That would be-I didn't prepare for that answer or that question. Id., p. 162.
Q. Is it more probable than not that in a de novo hearing before the superior court that Mr. Corneroli would prevail?
A. I can't answer whether or not he would prevail. I can assume. And I believe if he had good counsel he would do a better job-
Q. But, again-
A.-in superior court than in probate court.Id., pp. 139-40.
Attorney Berman's testimony is insufficient to establish a prima facie case on the issue of causation. He concedes that he does not know and cannot predict whether Judge Randich's decision would have been upheld or reversed on appeal and was not prepared to opine as to whether it was more probable than not that the Superior Court would have found in Mr. Corneroli's favor on appeal.
The plaintiff disclosed Professor Jeremy McClane on the issue of partnership law. Professor McClane has never been admitted to practice law in the state of Connecticut. He is currently admitted to practice law in New York. The disclosure of Professor McClane indicates that he will testify that " had the Defendants filed a timely appeal, the Plaintiff would have a reasonable basis for a successful outcome of the appeal and for a successful outcome in either the Superior Court of the Probate Court on remand." Disclosure, #156, November 16, 2015.
At his deposition, in addition to believing, incorrectly, that probate appeals in Connecticut were decided by juries, Professor McClane could not state to a reasonable degree of probability that the outcome of a timely appeal would have differed from Judge Randich's decision:
Q. Can you state to a reasonable degree of probability that the result of any appeal-of the outcome of an appeal in the Superior Court would have been different as opposed to Judge Randich's decision?
A. I mean, it's hard to say what the outcome of a litigation would be just because there are so many moving parts. So many things involved the skill of the lawyers, you know, what the jury thinks of the witnesses, but I think that there is certainly a very good chance that the outcome would have been different than what was indicated in Judge Randich's opinion.
Q. But can you say to a reasonable degree of probability that it's more likely than not the outcome would have been different?
A. I think there is a very good chance the outcome would have been different, I don't know that I can say more likely than not. I'm not saying it is or it isn't . I just don't think I can really say simply because, you know, if you were to believe everything-if a finder of fact were to believe everything that is in all of this testimony and all of these documents, than I think, yes there's a-it's likely that the outcome would be different because I think they would understand that this is a partnership asset and the claim is really about liquidating the partnership asset and getting the value for it. But I can't opine on whether or not people are going to believe one set of testimony over another.
Q. Okay, So sitting here today, you can't testify-you can only testify you believe there's a very good chance the outcome would have been different, not that it's more likely than not it would have been different?
A. I can say that if at a trial everyone believed-that all of the testimony of Mr. Corneroli were believed, than I think it's more likely than not.
Q. And what are the chances of all of his testimony would be believed?
A. I don't have the crystal ball to say that unfortunately.
Deposition of Jeremy McClane, pp. 97-99. Emphasis added.
In addition to not being able to opine that Mr. Corneroli's appeal would probably have been successful, Professor McClane failed to offer any testimony as to his bases for challenging the decision of Judge Randich. Significantly, Professor McClane could not dispute Judge Randich's conclusion that the New York Action represented Corneroli's only opportunity to recover against Adelson under any legal theory:
Q. In the last paragraph of Page 3, Exhibit 4 [Decision of Judge Randich], it begins " The plain conclusion reached by this court, however, is that if in fact a partnership existed, the New York action represented the one opportunity it had to obtain a recovery in this matter against Mr. Adelson." Do you see that?
A. Yes, I do.
* * * * *
Q. Do you agree as to that conclusion?
A. I don't actually have any basis on which to evaluate that conclusion, simply because I don't know what the action-what the specific cause of action was in New York.
* * * * *
Q. And you're not here to testify about the effect of that decision [the New York Action]; correct?
A. Yeah.Id., pp. 90-91.
Based on the foregoing, it does not appear that there is a material issue of fact. Professor McClane could not opine that it was more likely than not that Mr. Corneroli's de novo appeal to the Superior Court would have been successful. But more importantly, he had not reviewed the substance of Judge Randich's decision, which found, essentially, that the amounts as to which Mr. Corneroli claimed a partnership interest could not possibly be considered an asset of the partnership. They existed only because Mr. Adelson and the Estate thought that Mr. Corneroli had stolen the painting. Accordingly, even if Professor McClane had opined that the de novo appeal from probate would probably have succeeded, such an opinion would not be admissible because it lacked foundation. An opinion as to the success of an the appeal without any familiarity with all of the underlying litigation addressed by Judge Randich would be as inadmissible as the opinion of a doctor that the patient would probably have survived, without benefit of reviewing any medical records.
In a Sur-Reply to the Motion for Summary Judgment, the plaintiff appended an Affidavit of Jeremy R. McClane, dated June 23, 2016. That affidavit included the following:
9. I was questioned by the Defendants' counsel as to the probability that Mr. Corneroli would have been successful on his appeal from probate court had the Defendants filed a timely appeal. I testified that there was a reasonable basis for a successful outcome of that appeal and that there was a very good chance that the outcome would have been different than it was in the probate court. I believe it was reasonably probable.
10. When queried as to whether it was " more likely than not" I did not understand the terminology in the context of the pending legal malpractice action. As I now understand the Defendants' position, I am comfortable that my reasonable probability standard well exceeds more likely than not.
11. It was my opinion on March 31, 2016, and it is still my opinion, that it is more likely than not that Mr. Corneroli would have been successful had the Defendants filed a timely appeal.
The defendants argue that the affidavit of Professor McClane is a " sham affidavit" and should not be considered by this court in ruling on the summary judgment. The doctrine was first recognized by the Second Circuit in Perma Research and Development Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969). In Perma Research the court determined that the plaintiff could not explain a contradiction between his deposition testimony and a subsequent affidavit he submitted in opposition to summary judgment. Id., pp. 577-78. The court stated: " If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id., p. 578.
No court in Connecticut has adopted the sham affidavit rule. However, several Superior Courts have rejected affidavits which contradict testimony given at depositions. Ross v. Dugan, 2011 WL 6976102, (Dec. 16, 2011, Cosgrove, J.) [53 Conn.L.Rptr. 167, ]; Boutote v. Deerfield Realty Co., 2012 WL 5860244 (Nov. 1, 2012, Wilson, J.) [54 Conn.L.Rptr. 884, ]. Precluding an affidavit or testimony which contradicts deposition testimony is consistent with holdings of the Appellate Court which have affirmed trial court decisions that limited expert testimony to the subject matter that had been expressly disclosed in pretrial reports and depositions. See e.g., Ciarlelli v. Romeo, 46 Conn.App. 277, 280-81, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997); Kemp v. Ellington Purchasing Corp., 9 Conn.App. 400, 404-05, 519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106-08, 476 A.2d 1074 (1984).
The court will not consider the affidavit of Professor McClane for the reasons articulated by the court in Perma Research, supra : " If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." The court's consideration of the affidavit is also contrary to the holdings in Ciarlelli v. Romeo, 46 Conn.App. 277, 280-81, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997); Kemp v. Ellington Purchasing Corp., 9 Conn.App. 400, 404-05, 519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106-08, 476 A.2d 1074 (1984).
Even if the court were to overlook the improbability of Professor McClane's claim that when he was deposed, he did not understand what " more likely than not" meant, neither his deposition testimony nor his affidavit provide any basis to support the opinion that Mr. Corneroli would probably have prevailed in his de novo probate appeal. To the contrary, Professor McClane testified that he was not familiar with the substance of Judge Randich's opinion or Mr. Corneroli's litigation history vis a vis the painting at issue. The opinion the probate court was rational, logical and based on Mr. Corneroli's prior litigation with respect to the painting. In order to decide contrary to the opinion of Judge Randich, a Superior Court Judge would certainly need a good reason. Professor McClane has completely failed to articulate such reason. Thus, he provided no basis for any opinion as to causation. Without such a basis there is no genuine issue of material fact. Summary Judgment enters in favor of the defendants.