21-23 COLONY STREET, MERIDEN CT v. FISCHER’S FINE FOODS, LLC.

2010 Ct. Sup. 8407
No. CV 09-4012237SConnecticut Superior Court Judicial District of New Haven at Meriden
April 8, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION DEFENDANT’S MOTION TO OPEN JUDGMENT OF EVICTION
RICHARD E. BURKE, Judge.

At issue is whether the defendant’s motion to open the judgment of eviction for nonpayment of rent should be granted where the defendant asserts it had an oral agreement with the plaintiff related to the withdrawal of the summary process action if back rent was paid. For the foregoing reasons, the defendant’s motion to open is granted, but the court will allow the plaintiff to renew its judgment of foreclosure by reason of nonpayment of utilities in violation of the lease.

I BACKGROUND
On September 15, 2009, the plaintiff, 21-23 Colony Street, served a summary process complaint upon the defendant, Fischer’s Fine Foods, for nonpayment of rent. On October 1, 2009, the plaintiff filed a motion for default for failure to appear, and on October 2, 2009, judgment was found in favor of the plaintiff. Also on October 2, 2009, the defendant filed a motion to open the-judgment. The matter was heard at a hearing on March 12, 2010.

At the March 12, 2010 hearing, the defendant argued that although it fell behind on its rental payments to the plaintiff under the written lease, the parties came to an oral agreement where the defendant would pay the back rent to the plaintiff after which the eviction proceeding would be withdrawn. The defendant argued that it therefore has good faith defenses to the nonpayment of rent, the most substantial of those being the alleged agreement between the defendant and the landlord that if the defendant paid the back rent it would be allowed to stay.

The defendant submitted testimony of Rosario Gulino, a member of the defendant, to demonstrate that he reached an oral agreement with John LaRosa, an owner of the plaintiff, after being served the notice to CT Page 8408 quit. Gulino testified that he made one of three payments by check for back rent on September 11, 2009, but that the eviction was not dropped after the first payment. (Testimony of Rosario Gulino, Transcript of March 12, 2010, page 9.) Gulino testified that he became current with the rent after the judgment of eviction and the filing of the motion to open the judgment, but that the eviction was still not withdrawn. (Testimony of Rosario Gulino, Transcript of March 12, 2010, pages 9-10.) Gulino further testified that he would not have made payment of the back rent, a portion of which came from his personal account, as well as continue to pay current rent, if he felt that he would still be evicted despite the oral agreement. (Testimony of Rosario Gulino, Transcript of March 10, 2012, page 11.) Gulino testified that he did not take any steps to secure an attorney between service of the writ, summons and complaint and the judgment of eviction because the plaintiff led him to believe he did not need to because of their oral agreement. (Testimony of Rosario Gulino, Transcript of March 12, 2010, page 13.)

The plaintiff elicited testimony on cross-examination of Gulino that the defendant has a water-sewer payment due to the landlord under the terms of the lease, but that the amount of such is disputed by the defendant. (Testimony of Rosario Gulino, Transcript of March 12, 2010, page 15.) The defendant admitted on cross-examination, however, that it did owe some amount, and that it has not paid to the plaintiff even the undisputed portion of the bill. (Testimony of Rosario Gulino, Transcript of March 12, 2010, pages 16-17.)

II DISCUSSION
General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause . . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

“It is well settled that a civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of a judgment . . . A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a
provides in relevant part: Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil CT Page 8409 judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . . Practice Book § 17-4 states essentially the same rule . . . The exercise of equitable authority is vested in the discretion of the trial court and subject only to limited review on appeal . . . The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion.” (Citations omitted; internal quotation marks omitted.)Fitzsimmons v. Fitzsimmons, 116 Conn.App. 449, 454-55, 975 A.2d 729
(2009).

“Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and rules of practice.” Ziruk v. Bedard, 45 Conn.App. 137, 138, 695 A.2d 4, cert. denied, 243 Conn. 905, 701 A.2d 339 (1997). “A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment.” Martin v. Martin, 99 Conn.App. 145, 155-56, 913 A.2d 451 (2007). “Because of the important considerations for finality of judgments, however, a judgment should not be opened without a strong and compelling reason . . . The motion should be granted only when there appears cause for which the court acting reasonably would feel bound in duty to do so.” (Citation omitted; internal quotation marks omitted.) Id., 156. “It is well recognized that [t]he opening . . . of a judgment . . . is at the legal discretion of the court . . . [I]t is not to be granted readily, nor without strong reasons . . . The motion should indicate that the moving party is prepared to introduce some new matter not before the court at the time of its original decision.” Breen v. Breen, 18 Conn.App. 166, 172, 557 A.2d 140, cert. denied, 212 Conn. 801, 560 A.2d 984 (1989).

In the present case, the defendant has filed its motion to open within four months of the issuance of the judgment of eviction. The defendant’s motion demonstrates that if the judgment is opened the defendant is prepared to introduce the matter of the oral agreement regarding payment of back rent and withdrawal of the eviction action, which matter was not before the court at the time it entered the judgment of eviction. The defendant indicates that oral agreement between the parties here would be a defense to the eviction. Although the defendant does admit to owing at least some portion of the water-sewer bill, the defendant has demonstrated cause to open the judgment for which this court feels bound in duty to do.

III CONCLUSION
CT Page 8410

For the above stated reasons, the defendant’s motion to open the judgment of eviction is granted.

CT Page 8411