1375 KINGS HIGHWAY, LLC v. THE ELEPHANT GROUP, INC. ET AL.

2011 Ct. Sup. 17655
No. CV 09 5027829Connecticut Superior Court Judicial District of Fairfield at Bridgeport
August 16, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
BRUCE L. LEVIN, JUDGE OF THE SUPERIOR COURT.

On October 2, 2009, the plaintiff, 1375 Kings Highway, LLC, brought this action against the defendants, The Elephant Group, Inc. (TEG), Benzion Abboud, Blackrock Realty, LLC (Blackrock) and Wittek[1]
Development, LLC (Wittek).

The plaintiff filed a three-count amended complaint on October 26, 2009. In the first count, the plaintiff alleges that its predecessor in interest, 1375 Kings Highway/777 Commerce Drive Associates, LLC and 14 Mamaroneck Avenue Reinvestment Associates, LLC, as landlord, and TEG, as tenant, entered into a written five-year lease for commercial space. The plaintiff further alleges in the first count that TEG breached the lease by not paying rent on or after June 1, 2009. In the second count, the plaintiff alleges that Abboud guaranteed the lease between the plaintiff’s predecessor in interest and TEG and is therefore liable in damages for TEG’s breach. In the third count, the plaintiff alleges that TEG assigned its interest in the lease to Wittek and Blackrock on June 1, 2008. The plaintiff further alleges that in consideration for and in reliance on Wittek’s and Blackrock’s agreement to be jointly and severally liable with TEG for the payment of rent, the plaintiff consented to this assignment. The plaintiff continues to allege that on October 15, 2009, the plaintiff sent notice to Wittek and Blackrock of TEG’s failure to pay rent. The plaintiff further alleges in the third count that Wittek and Blackrock failed to pay the delinquent sums and have breached the lease.

TEG and Abboud (hereafter referred to collectively as the defendants) filed an answer to the amended complaint, denying liability. The defendants also filed the following special defenses: (1) the plaintiff failed to mitigate its damages; (2) the plaintiff has “unclean hands”; (3) the plaintiff is equitably estopped from enforcing the lease and the guarantee; (4) permitting the plaintiff to recover back rent would result in its unjust enrichment; and (5) the plaintiff brought this action in the wrong venue. The defendants also filed a five-count counterclaim sounding in fraudulent misrepresentation, negligent misrepresentation, CT Page 17656 breach of contract, promissory estoppel and unfair trade practices. The gist of each of these counts is that, in connection with the assignment of the lease to Blackrock and Wittek, the plaintiff falsely represented to the defendants that Wittek’s principal, Kurt Wittek, [2] would guaranty “the entire obligation” of the defendants under the assignment agreement and/or lease.

The plaintiff has moved for summary judgment on the defendants’ special defenses and counterclaim.

Practice Book § 17-44 provides in relevant part: “In any action, except administrative appeals which are not enumerated in Section 14-7, 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.” Practice Book § 17-49 provides: “The judgment sought 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.”

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).

I
The court cannot reach the merits of the plaintiff’s motion for summary judgment on the defendants’ special defenses because our rules do not provide for such a summary judgment. “[T]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a [plaintiff’s] motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses . . .” (Internal quotation marks omitted.) Comm. 2006-C8 Asylum Street, LLC v. Northland CityPlace II, LLC, Superior Court, judicial district of Hartford, Docket No. CV 10 6005957S (May 9, 2011, Sheldon, J.) (citing Wyatt Energy, Inc. v. Motiva CT Page 17657 Enterprises, LLC, 104 Conn.App. 685, 692 n. 7, 936 A.2d 280 (2007), cert denied, 286 Conn. 901, 943 A.2d 1103 (2008) and U.S. Bank National v. Suvemay, Superior Court, judicial district of Fairfield, Docket No. CV 08 50143585 (October 4, 2010, Hartmere, J.)).

The plaintiff’s motion for summary judgment and supporting memorandum make clear that the plaintiff seeks summary judgment on the defendants’ special defenses. The motion states: “Plaintiff moves for summary judgment in favor of Plaintiff on Defendants’ . . . First, Second, Third, Fourth, and Fifth special defense . . .” “What is in issue is determined by the pleadings and these must be in writing.” Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982) (reversing the entry of summary judgment where a proper motion had not been filed). The plaintiff’s motion for summary judgment on the defendants’ special defenses is denied.

II
The plaintiff also moves for summary judgment on the defendants’ counterclaim. As previously observed, the gist of each of these counts is that in connection with the assignment of the lease to Blackrock and Wittek, the plaintiff falsely represented to TEG and Abboud that Wittek’s principal, Kurt Wittek, would guaranty “the entire obligation” of TEG and Abboud under the assignment agreement and/or lease.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.” (Citations omitted; internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).

The plaintiff has not submitted evidence refuting the allegation that the plaintiff falsely represented to the defendants that Kurt Wittek would guaranty “the entire obligation” of TEG and Abboud. The lease, assignment agreement and guaranty of Kurt Wittek have been submitted to the court. Essentially, Kurt Wittek guarantees the plaintiff and TEG that if Blackrock and Wittek default on their obligations under the assignment of lease or assign their lease without satisfying assignment requirements under their lease, then Kurt Wittek will guaranty their performance CT Page 17658 including the payment of rent until Blackrock and Wittek Development vacate the premises. This does not guaranty the entire obligation of the defendants. The plaintiff has failed to satisfy its burden and, therefore, it is not entitled to summary judgment on the defendants’ counterclaim.

The plaintiff’s motion for summary judgment is denied.

[1] In its summons, complaint and subsequent pleadings, the plaintiff spells this name as “Wittek.” The defendants TEG and Abboud spell the name “Whittek.” The court uses the plaintiff’s spelling in this memorandum.
[2] On May 5, 2011, the court granted the defendants’ motion to implead Kurt Wittek as a third-party defendant.

CT Page 17659

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