2004 Ct. Sup. 14898-a, 38 CLR 556
No. HDSP-125521Connecticut Superior Court, Judicial District of Hartford Housing Session at Hartford
October 26, 2004
MEMORANDUM OF DECISION
DOS SANTOS, JUDGE.
The plaintiff, Anthony W. DiBella, Administrator of the Estate of William DiBella, has brought this summary process action against the defendant, Cypress Arms Restaurant, Inc. for possession of premises, known as 138 Park Road, West Hartford, CT. The defendant operates a restaurant at the premises.
The plaintiff’s brother, William DiBella, the decedent, operated a restaurant at the premises until August 10, 1999, when he sold the restaurant business to the defendant and retained his ownership interest in the real estate through a partnership called DL Realty. The purchase price, in part, included a purchase money note of $100,000.00, which came due five-(5) years after the purchase (Exhibit B).
The parties also executed a lease (Exhibit C) with a series of five (5) year options, the last expiring on July 31, 2008. The lease provides, “All terms and conditions of the lease shall apply during the extended term except that the amount of rent shall be negotiated between Lessee and Lessor, prior to the written notice to exercise this option by Lessee.” (Exhibit C, Paragraph 28). The same paragraph also contains language that rent during the extended terms would be computed using a formula based on increases in the Consumer Price Index after a notice to extend was delivered. The defendant contends that the two sentences in the paragraph conflict and cannot be reconciled.
In a previous summary process action, Docket No. HDSP-114349, the parties entered into a stipulated agreement. The Court entered judgment in accordance with the terms and conditions of the stipulation. The judgment provided, in part, that possession would enter in favor of the plaintiff with a stay of execution on the judgment through December 31, 2002 on the condition the CT Page 14898-b defendant make certain payments and use and occupancy payment of $3,000.00 per month. The parties also agreed, outside the judgment, that the defendant’s purchase money promissory note to the plaintiff’s decedent would become due and payable on December 1, 2004 (Exhibit D).
Timothy McCarthy testified that the defendant made all payments required under the stipulation through the date of trial in the present action and all monthly note payments. The plaintiff did not rebut this testimony.
On July 1, 2003, the plaintiff served, a notice to quit possession terminating an alleged oral lease on or before July 31, 2003. Then, the plaintiff brought this action for lapse of time. In the complaint, the plaintiff alleges an oral month-to-month lease dated December 4, 2001, predicated on the written stipulation that was signed by the parties and entered as the judgment in the first action. The plaintiff seeks immediate possession of the premises based on lapse of time.
It is the defendant’s position that judgment should be entered in its favor for several reasons. The defendant maintains that the plaintiff is not a proper party to this action, as claimed in the defendant’s fourth special defense. The plaintiff testified that the demised premises is an asset of a partnership known as DJ Realty. DJ Realty was formed by the plaintiff’s decedent brother and another person, Edward Jacobs, according to the plaintiff. The plaintiff testified he knew of no written partnership agreement between the decedent and Jacobs.
The defendant asserts that Jacobs, the surviving partner, has legal ownership of the partnership property and assets. Therefore, because the legal owner is not a party to this action, the defendant contends that the plaintiff has no standing to bring this action and judgment should enter in favor of the defendant.
The defendant contends that judgment should also enter in favor of the defendant because no oral lease existed between the parties that terminated for lapse of time. The defendant contends that the written stipulation between the parties was not an oral lease.
The plaintiff agrees that the plaintiff is the administrator of his deceased brother’s estate and that DL Realty is a CT Page 14898-c partnership originally formed between the decedent and S. Jacobs Sons, Inc., whose president is Edward Jacobs. The plaintiff was appointed administrator of his brother’s estate by the West Hartford probate court in January 2000.
The plaintiff testified that after his brother’s death, Jacobs, on behalf of S. Jacobs Sons, Inc., did not want to liquidate or dissolve the partnership. The plaintiff and Jacobs agreed to continue the partnership, which included the arrangement that the plaintiff, as administrator would control and manage the property, which is the subject of this action. The plaintiff argues that with the acknowledgment and agreement of Jacobs, the plaintiff instituted the prior eviction action against the defendant on May 15, 2001, that resulted in the stipulated judgment. Pursuant to the stipulated judgment, the parties agreed to a judgment for possession of the premises with a stay of execution through December 31, 2002.
“In the absence of an agreement otherwise, the death of a partner dissolves the partnership, and the legal ownership and right of control of the assets vests in the surviving partner which he holds, however, as quasi-trustee for the estate of the deceased partner.” Casey v. Hurley, 112 Conn. 536, 538, 539
(1931), Steinmetz v. Steinmetz, 125 Conn. 663, 668 (1939). The plaintiff failed to present any evidence that the partnership survived the death of William DiBella.
The plaintiff attached to his brief an affidavit from Jacobs after the trial. However, the affidavit is not part of the testimony or exhibits presented during the trial and, therefore, the affidavit cannot be considered evidence in this case. City of Hartford Housing Authority v. Cobbs, No. HDSP-124093 (A. dos Santos, J.).
Because the plaintiff has failed to establish standing to bring this action through competent evidence, the Court is unable to rely upon the notice to quit issued by the plaintiff For this reason, the Court concludes that it lacks jurisdiction to consider this case.
The plaintiff’s summary process action is based on an alleged oral month-to-month lease resulting from the first summary process action. Upon review of the “Stipulation for Judgment” entered into by the parties, the Court cannot find that the parties intended to enter into an oral month-to-month lease. The CT Page 14898-d agreement, specifically, refers to “use and occupancy payments” and “rental arrearage” payments
Judgment is entered for the defendant.
BY THE COURT:
Angelo L. dos Santos, J. CT Page 14899