402 ELM STREET, LLC v. ANDRE P. DUQUENE, SONIA P. DUQUENE D/B/A EBENES GROCERY.

2011 Ct. Sup. 4744, 51 CLR 563
No. SNSP-038400Connecticut Superior Court Judicial District of Stamford at Norwalk
March 16, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
MOORE, J.

This is a summary process action based on nonpayment of rent for the month of November 2010. The case was tried on February 17, 2011. At the time of trial, the defendant raised, by an oral motion to dismiss, the claim that the court lacked subject matter jurisdiction because 1) there was no landlord-tenant relationship between the parties as alleged by the plaintiff and 2) that the address on the notice to quit, summons and complaint, was improper. “A motion to dismiss . . . properly attacks the jurisdiction of the court essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction.” (Internal quotations marks omitted), Cos v. Aiken, 278 Conn. 204, 210-11, 897 A.2nd 71 (2006).

A Motion to Dismiss that challenges the court’s lack of subject matter jurisdiction may be filed at any time. Connecticut Practice Book §§ 10-33.

The defendant testified that prior to the start of this action, he was served with several notices to quit. He stated that there may have been as many as 10 but there was definitely one in December 2009. He argued through his counsel that, due to the prior notices to quit, he was no longer obligated to pay rent as the rental agreement terminated with the service of the notice to quit and he became a tenant of sufferance. Due to the tenancy at sufferance, he was obligated to pay use and occupancy only and therefore, the plaintiff’s claim for non payment of rent in the notice to quit and complaint in this action made them defective.

In Housing Authority v. Hird, 13 Conn. App. 150, 535 A.2nd 377 (1988), the plaintiff initiated CT Page 4745 three summary process actions before finally evicting the defendant. “The trial court found that . . . because the eviction action following [the second] notice to quit possession [had] been withdrawn, [it] had no legal effect or consequences on the pre-existing lease between the parties.” Id., 155. Unde Hird, any previous notices to quite served on this defendant would have no legal effect. Additionally, our Supreme Court has commented on the Appellate Court’s reasoning in Hird by quoting, “Under our law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment o the erasure of a case from the docket. . . . The [landlord] and the [tenant] were back to square one, and a continuation of their lease . . . was restored. (Citations omitted; emphases added; internal quotation marks omitted.) Id., at 157.”Waterbury Twin v. Renal Treatment Centers-Northeast, 292 Conn. 459, 467-468, 974 A.2nd 626 (2009).

A dismissal of a summary process action has been found to have the same effect on the status of the parties as a withdrawal. I Metacomet Homes, Inc. v. Calabretta, No. HDSP-145890 (Apr. 25, 2008, Bentivegna, J.), the court was confronted with a Motion to Dismiss based on the defendant’s claim that in a prior summary process action there was a rendition of a final judgment in favor of the defendant by way of a dismissal of the action. In denying the motion to dismiss the Court held: “As i Hird, the dismissal `effectively erased the court slate clean as though the eviction predicated on the [first] notice to quit possession had never been commenced.’ Hird, 156-157. Consequently, the defendant’s obligation under the lease . . . survived.”

In the present case, of all the previous notices to quit that the defendant may have received, the Court notes that the notice to quit served in December 2009 resulted in a court action, SNSP-037190, 402 Elm Street, LLC v. Duquene d/b/a Ebenes Grocery, et al. That action was dismissed on May 11, 2010 on the docket management program for dormancy. “The Superior Court can take judicial notice of the files and records in another suit formally pending in that court between the parties.” McCleave v. John Flanagan Co., 115 Conn. 36, 38, 160 A.305 (1932). Unde Hird, the dismissal in May 2010 would place the parties back to their original position of their month to month rental agreement.

The plaintiff also testified that, after he served the defendant CT Page 4746 with the December 2009 notice to quit, the parties spoke and the defendant agreed to make payments in a more timely fashion and the landlord decided not to pursue the legal action any further. This arrangement for payments to be made under the original lease or agreement would support the findings that the parties had been restored to their earlier positions with a clean slate and that the tenancy at sufferance had ended.

The defendant further claimed that his motion to dismiss should be granted because the incorrect address in the notice to quit, summons and complaint in this action made them defective. He testified that the notice to quit, the summons and complaint listed the property as 404 Elm Street, Stamford, Connecticut. The defendant testified that he had known his property as 406 Elm Street since 1996. The defendant offered no evidence that his belief concerning his address was in fact the correct address for the property. The plaintiff’s witness, Peter Nanos, principal member of the LLC, testified that there were four doorways fronting the property on Elm Street. The main door to the property was 406 Elm Street, the defendant’s door was 404 Elm Street and two other doors which led to other units either containing or had contained restaurants were 402 and 408 respectively.

“A dismissal is required whenever an address is misdescribed in a notice to quit unless, despite the error, the tenant is served at the correct address, and the misdescription is so minor that a reasonable person would not be confused by it.”1275 Silver Lane Associates, LLC v. Teal Landscaping, Superior Court, judicial district of Hartford, docket no. HDSP 137467, (October3, 2006, Bentivegna, J.). In this case, the notice to quit, the summons and complaint correctly identified the defendant and he was served at his place of business which he acknowledged receiving. The court finds that there is no evidence supporting his belief as to the address of the property. However, even if the property’s address proved to be different, the error is so minor that a reasonable person would not be confused by it. Accordingly, the defendant’s motion to dismiss is denied.

The Court has weighed all the evidence and assessed the credibility of the witnesses. Based on the evidence presented, the court makes the following findings regarding the respective claims and defenses. The court finds that the plaintiff has proved, by a fair preponderance of the evidence, all the elements of the case. The defendant offered no defense to the claim of nonpayment of rent and chose to rely solely on its claims in the motion to dismiss. In CT Page 4747 fact, the defendant admitted that no rent was paid after September 2010 in his testimony.

Having considered the law and equity, the court enters judgment for the plaintiff for immediate possession.

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