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Town of Newtown v. Ostrosky

Appellate Court of Connecticut

July 30, 2019


         Argued January 7, 2019

         Appeal from Superior Court, Judicial District of Bridgeport, Richard P. Gilardi, Judge Trial Referee.

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[Copyrighted Material Omitted]

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          Robert M. Fleischer, for the appellant (defendant).

         Barbara M. Schellenberg, Orange, with whom was Jason A. Buchsbaum, Bridgeport, for the appellees (plaintiffs).

         DiPentima, C. J., and Bright and Beach, Js.


         BEACH, J.

         [191 Conn.App. 452] The defendant, Scott Ostrosky, appeals from the judgment of the trial court denying his motion to dismiss the action and to open and vacate the court’s prior judgment that had been rendered in favor of the plaintiffs, the town of Newtown and several of its agencies and employees.[1] On

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appeal, the defendant claims that (1) the court lacked subject matter jurisdiction to adjudicate the plaintiffs’ claims, (2) he was deprived of his due process right to notice and the opportunity to be heard on the merits of his case, and (3) the court had continuing jurisdiction to enforce and to modify its injunctive orders even if the motion to open and to vacate judgments was untimely. We affirm the judgment of the trial court.

         The record reveals the following facts and procedural history. This case arises out of efforts by the plaintiffs to enforce cease and desist orders relating to activity on the defendant’s property. The defendant’s property comprises 21.9 acres of land, of which 5.5 acres are [191 Conn.App. 453] located in Newtown. The majority of the defendant’s property is located in the town of Monroe.[2] On August 13, 2013, Steve Maguire, the plaintiff land use enforcement officer for the town of Newtown, issued two cease and desist orders, which were served on the defendant on August 21, 2013. One order cited several conditions that allegedly violated zoning regulations, including the presence of unregistered vehicles, commercial vehicles, inoperable vehicles, waste, abandoned material, and junk accumulation. The order required the defendant to take corrective action within thirty days to avoid fines or legal actions. The second order noted violations of inland wetlands regulations, including "clearing, filling, deposition, and removal of material within the regulated wetland area." Failure to "cease and desist all activities" bore potential fines and penalties of up to $1000 per day. (Emphasis omitted.)

          In December, 2013, the plaintiffs initiated the underlying action, seeking, inter alia, injunctive relief compelling the defendant to comply with the cease and desist orders and to submit an application to the Inland Wetlands Commission of the Town of Newtown to remediate affected areas. The complaint also sought civil fines, penalties, and attorney’s fees. The defendant was served with this summons and complaint on January 13, 2014, by a state marshal.

         On February 7, 2014, Attorney Thomas Murtha[3] filed an appearance on behalf of the defendant. The plaintiffs [191 Conn.App. 454] moved pursuant to Practice Book § 9-5 to consolidate the action with a similar action brought by the town of Monroe and several of its agencies and employees. See Monroe v. Ostrosky, Superior Court, judicial district of Fairfield, Docket No. CV-14-6041168-S. After the cases were consolidated, Murtha moved to withdraw his appearance on the ground of a conflict of interest with the town of Monroe. A hearing on the motion to withdraw was scheduled for June 23, 2014. An order included in the notice of hearing required that "[p]ursuant to Practice Book § 3-10, notice must be ‘given to attorneys of record’ and your client(s) must be ‘served with the motion.’ " There is no indication in the record that Murtha notified the defendant of his intention to withdraw. At the hearing on the motion to withdraw, Attorney Peter Karayiannis from Murtha’s law office appeared on behalf

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of the defendant. The following colloquy occurred before the court, Bellis, J. :

          "The Court: Is [the defendant] present?

          "[Attorney] Karayiannis: He’s not, Your Honor.

          "The Court: And do you have the proof of service?

          "[Attorney] Karayiannis: We haven’t gotten the green card back, but he’s aware of the conflict, and he’s been advised to retain new counsel.

          "The Court: So— and can you represent that he’s received a copy of the motion?

          "[Attorney] Karayiannis: I don’t know if he’s— I haven’t spoken to him about that, so I wouldn’t want to—

          "The Court: Does he know— can you represent that he knows it’s down today?

          "[Attorney] Karayiannis: I don’t know if [Attorney] Murtha spoke to him about that. If you would like, I [191 Conn.App. 455] can try to place a call. I know Attorney Murtha [is] in court too.

          "The Court: Right. Do you know if he has an objection to it?

          "[Attorney] Karayiannis: I do not— I do not believe he has an objection to it, no, Your Honor.

          "The Court: All right.

          "[Attorney] Karayiannis: We’re kind of stuck with it. I mean, if there’s a conflict—

          "The Court: No, I understand that. I just— I just want to make sure he is not blindsided, that’s all. And since the motion was just— you know, we put it on—

          "[Attorney] Karayiannis: Understood.

          "The Court: — for today. I mean, I’m— I don’t know that it’s going to make much of a difference anyway, but I’ll grant it based on the representation that he consents to the motion being granted.... But counsel, since I granted this without [the defendant] here and without knowing for sure that he received a copy of the motion, what I’m going to do is, I’m going to require your office to send correspondence to [the defendant], giving him the new hearing date—

          "[Attorney] Karayiannis: Okay.

          "The Court: — for both cases, and carbon copy that letter. I mean, it’s just going to be one line, the new hearing— you know.

          "[Attorney] Karayiannis: Do you want me to send him a copy of the order as well or— today’s order or—

          "The Court: You probably ...

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