Opinion
No. CV 09 5010726
August 9, 2011
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION [#137]
On January 25, 2011, this court, Martin, J., denied the motion for summary judgment filed by the defendant, Samuel Gipstein, as to the complaint brought by the plaintiffs, Jennifer L. Geise, as administratrix of the estate of John J. Geise, III, the plaintiffs' decedent, and Jennifer L. Geise, individually. The defendant filed a motion for reargument and/or reconsideration on March 16, 2011, which this court, Martin, J., denied on April 5, 2011. On April 25, 2011, the defendant filed a motion for reconsideration of the court's decision to deny the defendant's motion for reargument and/or reconsideration.
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . ." (Internal quotation marks omitted.) Marquand v. Administrator, Unemployment Compensation Act, 124 Conn.App. 75, 80, 3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d 630 (2011). "The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn.App. 849, 866, 977 A.2d 738 (2009).
In his motion for reconsideration, the defendant correctly argues that a cause of action brought pursuant to the substantial assistance doctrine cannot be based in negligence. Calore v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 98 0357147 (January 8, 2001, Smith, J.) ( 28 Conn. L. Rptr. 653). However, the court finds that although the parties indicate that the plaintiffs' complaint sounds in negligent service of alcohol, the record reveals that the plaintiffs have sufficiently brought a claim for aiding and abetting the tortious conduct of another. "The question is not the label placed on the claim." Doe v. Yale University, 252 Conn. 641, 689, 748 A.2d 634 (2000). "The essential nature of a proceeding is not determined by its form or label . . ." (Internal quotation marks omitted.) State v. Smith, 207 Conn. 152, 176, 540 A.2d 679 (1988). "[T]he construction of a pleading is a question ultimately for the court." Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). "It is, after all, the facts alleged which determine the cause of action, and not the nomenclature employed." Hartford Accident Indemnity Co. v. Chung, 37 Conn.Sup. 587, 595, 429 A.2d 158 (App.Sess. 1981). Whether the defendant intentionally assisted Lavruk's tortious conduct is a question of fact not proper for determination on summary judgment. See Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 283, 698 A.2d 838 (1997) (noting "[i]ntent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case").
Furthermore, the court finds that the remainder of the defendant's arguments in favor of granting the motion for reconsideration fail to demonstrate that the court overlooked a controlling decision or principle of law, misapprehended the facts, or failed to address a relevant claim of law. Marquand v. Administrator, Unemployment Compensation Act, supra, 124 Conn.App. 80. As a result, the defendant's motion for reconsideration must be denied.
CONCLUSION
Based on the foregoing, the defendant's motion for reconsideration of the court's decision to deny the defendant's motion for reargument and/or reconsideration is hereby denied.