901 FARMINGTON, LLC v. COMPREHENSIVE AESTHETIC DENTRISTY, P.C.

2010 Ct. Sup. 11166, 49 CLR 845
No. HDSP-152391Connecticut Superior Court Judicial District of Hartford, Housing Session at Hartford
April 12, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
GILLIGAN, J.

This is a summary process action brought by the plaintiff, 901 Farmington, LLC, to recover possession of the commercial business premises known as 901 Farmington Avenue, Second Level, West Hartford, Connecticut (the “Premises”) from the defendant, Comprehensive Aesthetic Dentistry, P.C. The plaintiff seeks to terminate the lease pursuant to a notice to quit dated May 11, 2009. The defendant has filed a motion to dismiss the action challenging the court’s jurisdiction to hear the matter. The court conducted a hearing on the defendants’ motion on April 6, 2010. Both parties were represented by counsel.

The defendant claims that the notice to quit served by the plaintiff is defective in that it improperly describes the subject Premises. The defendant argues that the plaintiff’s failure to properly describe the Premises in the notice to quit renders the notice to quit defective and therefore the court lacks subject matter jurisdiction

LEGAL STANDARD
Practice Book § 10-31(a) provides in pertinent part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .”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 quotation marks omitted). Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). A valid notice to quit “is a condition precedent to a summary process action” under § 47a-23 that implicates the trial court’s subject matter jurisdiction over that action. Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5, 931 A.2d 837 (2007).

“General Statutes § 47a-23(b) sets forth the form of the notice to quit with which there must be substantial compliance.” Sandrew v. CT Page 11167 Pequot Drug, Inc., 4 Conn.App. 627, 632, 495 A.2d 1127 (1985).

THE NOTICE TO QUIT
In the present case, the notice to quit contains the following language:

Comprehensive Aesthetic Dentistry P. C.
901 Farmington Avenue, Second Level
Hartford, Connecticut
I hereby give you notice that you are to quit possession or occupancy of the space Now occupied by you at 901 Farmington Avenue, Second Level, Hartford, Connecticut, on or before May 19, 2009 for the following reason: Nonpayment of rent including Operating Expenses and share of real estate taxes.

DISCUSSION
The defendant argues that since the commercial office building is located in the Town of West Hartford, Connecticut but is described as being situated in the City of Hartford, Connecticut, the plaintiff’s failure to accurately describe the Premises in the notice to quit renders the notice to quit defective. The plaintiff does not dispute that the leased Premises are located in the Town of West Hartford.

“[T]he notice requirements of the general summary process statute; General Statutes 47a-23; are jurisdictional.” (Citation omitted.)Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175 (1989). “The notice [to quit] is a condition precedent to the bringing of the [summary process] action.” O’Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946); Lampasona v. Jacobs, supra, 209 Conn. 729. “The failure to describe the premises accurately deprives the court of subject matter jurisdiction. Rich-Taubman Associates v. Hermann’s Sporting Goods, Inc., SNBR-329, May 30, 1989 (Reifberg, J.), Holtz v. Zona, NH-278, October 29, 1984, (Barnett, J.), Vogel v. Bacus, 133 Conn. 95, 97
(1946).” Wilson Properties v. Pres. Int’l Food, Superior Court, judicial district of Stamford-Norwalk Housing Session, Docket No. SPNO 950917966 (October 20, 1995, Tierney, J.) (1995 Ct.Sup. 12421) (15 Conn. L. Rptr. 397).

“Although not required by statute, the best practice in a commercial CT Page 11168 eviction is to use the lease language describing the premises. Seventeen High Street, L.L.C. v. Shoff-Darby Insurance Company, SNBR-423, 14 Conn. L. Rptr. 206 (April 21, 1995) (Tierney, J.). `It is recommended that where there is a commercial lease the exact language used in the lease to describe the premises should be used in the notice to quit.’ Seventeen High Street, LLC. v. Shoff-Darby Insurance Co. supra.” Wilson Properties v. Pres. Int’l Food, supra, 1995 Ct.Sup. 12422-23.

In the present case, since the notice to quit refers to “Hartford” in both the salutation and in the body of the notice to quit, it is somewhat difficult to dismiss the inaccuracy as an excusable typographical or scrivener’s error. “It is clear from the examination of the notice to quit that the detailed description of the exact premises contained in the body of the notice to quit, not the salutation, is the section of the notice to quit that controls. Hiller v. Milan, H-738, June 2, 1991 (Holzberg, J.); Rich-Taubman Associates v. Herman’s Sporting Goods, Inc., SNBR-329, May 30, 1989 (Riefberg, J.); Holtz v. Zona, NH-278, October 29, 1984 (Barnett, J.); Vogel v. Bacus, supra 101.” Seventeen High St. v. Shoff-Darby, Ins., supra, 1995 Ct.Sup. 3433-34.

“A notice to quit which does not accurately and reasonably specifically describe the premises sought to be recovered by the landlord is fatally defective. Vogel v. Bacus, 133 Conn. 95, 98 (1946).” Street Retail, Inc. v. Tyropolis, Superior Court, judicial district of Hartford-New Britain at Hartford Housing Session, Docket No. SPH 96244 (Apr. 27, 1998, Beach, J.) (1998 Ct.Sup. 6409).

As summary process is a creature of statutory law, any deviation or failure to comply with the statutory requirements will deprive the court of jurisdiction to hear the summary process action. City of Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582 (1988) Housing Authority v. Martin, 95 Conn.App. 802, 808, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006).

The court finds the notice to quit is fatally defective as a result of the erroneous description of the Premises. The defendant’s motion to dismiss is granted.

CT Page 11169