2010 Ct. Sup. 2132
No. CV 075008975Connecticut Superior Court Judicial District of New Haven at New Haven
December 30, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#122)
ROBINSON, A., J.
On June 19, 2009, the defendants, EH651 Realty Associates, LLC (EH651) and David McDermott, filed a motion for summary judgment on the grounds that they are not liable because they did not own, control or maintain the premises where the plaintiff was injured; and because the actual owner of the premises is another limited liability corporation, EH653, LLC (EH653). The defendants alternatively move for summary judgment on the ground that the plaintiff’s sole remedy is under the state workers’ compensation statute since the injury took place on property controlled and maintained by the plaintiff’s employer. The plaintiff, Robert Cretella, filed a memorandum in opposition on August 6, 2009.
The court initially denied the defendants’ motion on the papers on August 10, 2009 because the defendants’ motion referred to and relied upon a lease, which they failed to submit as evidence. The defendants then filed a motion to reargue dated August 26, 2009, which was granted on September 8, 2009 and the court heard argument on October 13, 2009. Consequently, the defendants’ motion for summary judgment is once again before this court.
The pertinent facts are as follows. On January 24, 2005, the plaintiff slipped and fell on an accumulation of snow and ice while walking in the parking lot on the premises located at 655 Main Street in East Haven, Connecticut. The plaintiff claims that the injuries he sustained in the fall were a result of the defendants’ negligence. The plaintiff alleges that the defendants own, control and maintain the subject premises which it leases to the McDermott Auto Group, which operates a car dealership thereon. The defendants deny that they own, control or maintain the premises and they deny that their negligence caused the plaintiff’s injuries. McDermott also denies that the premises was leased to the McDermott Auto Group; and EH651 alleges that it was occupied, controlled and maintained by David McDermott of New Haven, Inc. (McDermott of New Haven) and David McDermott Chevrolet, Inc. (McDermott Chevrolet).
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The issue for this court to resolve, therefore, is whether or not the defendants have established that they are entitled to judgment, as a matter of law, because they did not own, possess or control the subject premises. For reasons more fully set forth herein, this court vacates its previous ruling on the motion for summary judgment (#122) and grants the defendant’s motion.
The defendants attached to their motion two affidavits (one from McDermott and the other from Lou Krasenics, the property manager); and a copy of the lease. The plaintiff challenges these submissions as hearsay. The court concludes that the affidavits are admissible because both affiants are competent to testify and their testimony is based upon personal knowledge. Each affidavit also authenticates the lease by attesting that it is a true and accurate copy. And, the lease itself, is acknowledged by a notary public and a commissioner of the superior court. Therefore, it qualifies as a self-authenticating evidentiary document pursuant to General Statutes § 1-29.
In the affidavits, both McDermott and Krasenics attest that the premises wherein the plaintiff fell was leased by McDermott of New Haven and owned by EH653 not EH651. The affidavits further attest that EH653 does not retain control of or maintain the premises because it has contracted that responsibility away to McDermott of New Haven in the governing lease. According to the affidavits, McDermott of New Haven, of which the plaintiff was an employee, was responsible for the maintenance of the premises, including snow and ice removal. The terms of the lease document confirm the statements made in the affidavits. The lease identifies McDermott of New Haven as the tenant and Haven Plaza East Associates as the landlord. The lease was assigned to EH653 by East Haven Plaza Associates on September 16, 2003.
The documentary evidence establishes, without contradiction, that the parties to the lease and the subsequent assignment are not the parties named and served in this litigation. Therefore, the defendants are entitled to judgment on this basis.
Further, the lease indicates that it was the responsibility of the tenant to maintain the premises and remove snow and ice. “The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control . . . Landlords (however) generally (do) not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant.
“The issue of whether the landlord retained control over a specific CT Page 2134 area of the premises is essentially a matter of intention to be determined in light of all the significant circumstances. Thus, unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant . . .”LaFlamme v. Dallessio, 261 Conn. 247, 256-57 (2002).
If there is a lease, as there is in this case, the express language of the lease establishes whether or not the lessor has retained control or whether or not the lessee is given possession and control. See, Rogers v. Great Atlantic Pacific Tea Co., 148 Conn. 104, 106-08 (1961).
The defendants have met their burden of showing the absence of genuine issues of material fact in dispute as to whether or not they owned, maintained or controlled the subject premises. The plaintiff has failed to submit any evidence to refute these facts. Additionally, by the express terms of the lease, McDermott of New Haven, as tenant, was legally responsible for the maintenance of the subject property. McDermott of New Haven is not a party to this action. Because this court determines that there are no issue of material fact in dispute regarding ownership, possession and control, it need not reach the defendants’ special defense, asserted pursuant to the Workers’ Compensation Statute. For the foregoing reasons, the court vacates its previous ruling denying the motion for summary judgment and hereby grants the defendants’ motion for summary judgment.
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