Torgerson v. Sarah Tunis Residential S., No. Cv-01-0450184 S (Oct. 24, 2002) , 2002 Conn. Super. Ct. 13695 ( 2002 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The principal issue in this case is whether the sale of 45 Boston Street, Guilford by the plaintiff William Torgerson to the defendant Sarah Tuxis Residential Services, included a vehicular right of way or merely a pedestrian right of way, over the remaining land of the defendant.

The plaintiff and Sotira Z. Tubaya on July 15, 1999 sold to the defendant the subject property, which in addition to the legal description in metes and bounds provided "`Parcel A' on a map entitled `PROPERTY SURVEY MAP AND DIVISION MAP 45 BOSTON STREET, GUILFORD, CONNECTICUT SCALE 1" = 20' SHEET 1 OF 1 DATE 3-15-99' prepared by Kenny Associates, Inc. 147 Durham Road, Madison, Connecticut 06443."

Unfortunately, there were two such maps dated July 15, 1999. One map reserved a right of way over the existing driveway 20 feet in width and the other reserved a pedestrian only easement.

The plaintiff failed to call as a witness Kimberly Simon, an attorney who was at the closing. The plaintiff claims that Ms. Simon did not represent him at the closing, but concedes that she was his girlfriend and was present at the closing. Whether or not Ms. Simon acted as his attorney, the plaintiffs failure to call her as a witness allows the court to draw an adverse inference. Secondino v. New Haven Gas Co.,147 Conn. 672, 674-678. Indeed, the court need not rely upon this inference, because the overwhelming weight of the evidence indicates that only a pedestrian path was reserved.¹

The court also finds that no tax adjustment is due the plaintiff. At the time of the closing the method of the adjustment was specifically discussed and agreed to by the parties.

Accordingly, the court finds all the issues in favor of the defendant. CT Page 13696

___________________ Robert I. Berdon, Judge Trial Referee