POTTER, J.T.R.
On November 10, 2004, the plaintiff, Ameriquest Mortgage Company, filed the present foreclosure action against the defendant, James Ruane. In its complaint the plaintiff alleges the following facts. At all times relevant to this foreclosure action, the defendant owned real property situated at 6 Killingly Road, Pomfret, Connecticut. On or about March 31, 2003, the defendant executed and delivered to the plaintiff a note for a loan in the original principal amount of $135,000.00. On said date, to secure said note, the defendant also executed and delivered to the plaintiff a mortgage on the property. The note is in default and the plaintiff, as the owner and holder of the note and mortgage, has elected to accelerate the balance due on the note and to foreclose the mortgage securing the note.
On November 16, 2004, the defendant, pro se, filed an answer to the complaint and a counterclaim. The defendant's counterclaim alleges the following facts. The property that the defendant acquired, which represents the security for the note in the form of the mortgage described in the complaint, does not comply with the zoning regulations for the town of Pomfret in that it contains only 1.2 acres of land instead of the 2 acres required by the regulations. The plaintiff, or its agents (seller and seller's broker), knew or in the exercise of due care should have known that the property did not comply with the zoning regulations. The defendant specifically claims that the plaintiff "negligently failed to advise" the defendant that the property did not comply, and the defendant has been "irreparably harmed and has sustained substantial financial loss as a result of the negligence" of the plaintiff. Simply, the defendant's counterclaim attempts to set forth a cause of action for negligent misrepresentation.
On February 1, 2005, the plaintiff filed an initial motion for summary judgment on the complaint, as to liability only, which was subsequently granted by the court (Booth, J.) on October 16, 2006. On April 13, 2009, CT Page 11196 with permission of the court, the plaintiff filed another motion for summary judgment as to the defendant's counterclaim on the ground that there exists no genuine issues of material fact and the plaintiff is entitled to judgment as a matter of law. The plaintiff's motion for summary judgment on the defendant's counterclaim is presently before this court.
"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." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. v. Better Benefits, LLC, 292 Conn. 111, 119 (2009). "In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 397 n. 3, 876 A.2d 522 (2005); See Practice Book § 17-44.
"Liability for negligent misrepresentation may be placed on an individual [or entity] when there has been a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make full and fair disclosure as to the matters about which he assumes to speak." (Internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008). "[A] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose. (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 180, 757 A.2d 14 (2000). Whether or not there is a duty to disclose depends on the relationship of the parties . . . or, to put it in another way, whether the occasion and circumstances are such as to impose a duty to speak." (Internal quotation marks omitted.) LLP Mortgage Ltd v. Gurski, Superior Court, judicial district of Litchfield, Docket No. CV 02 0087002 (January 10, 2003, Pickard, J.).
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation and actual injury . . CT Page 11198 . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).
[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, CT Page 11197 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006). Thus, if no duty is found to exist then it is proper to grant summary judgment.
"Generally there exists no fiduciary relationship merely by virtue of a borrower-lender relationship between a bank and its customer." Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 19, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). "A fiduciary relationship exists where there is a justifiable trust confided on one side and a resulting superiority and influence on the other . . . No per se fiduciary relationship exists by virtue of the borrower-lender relationship between a bank and a customer . . . without exceptional circumstances that would establish the existence of a confidential relationship . . . [N]ormally the bank and its customer stand at arms length. The bank has a right to further its own interest in a mortgage transaction and is under no duty to represent the customer's interest." (Citations omitted; internal quotation marks omitted.) Greenpoint Mortgage Corp. v. Ruisi, Superior Court, judicial district of Danbury, Docket No. 333106 (June 1, 1999, Moraghan, J.).
The defendant's counterclaim, which is presently before this court, merely attempts to assert that the plaintiff was negligent in failing to advise the defendant that the property did not comply with the local zoning regulations, by virtue of their borrower-lender relationship. However, no per se fiduciary relationship exists by virtue of a borrower-lender relationship. Accordingly, the plaintiff-lender had a right to further its own interest in the mortgage transaction without an obligation or duty to proactively represent the defendant's interest. A failure to disclose can only be deemed an actionable negligent misrepresentation if there is a duty to disclose. Since the plaintiff had no duty to independently determine whether the subject property complied with zoning regulations or to disclose any known facts regarding the applicable zoning regulations effects on the subject property, it is proper to grant summary judgment on the defendant's counterclaim in favor of the plaintiff.
Based on the foregoing, the court hereby grants the plaintiff's motion for summary judgment as to the defendant's counterclaim alleging negligent misrepresentation.