2011 Ct. Sup. 5991
No. CV 10 6003409Connecticut Superior Court Judicial District of New London at New London
February 24, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, No. 114
MARTIN, J.
FACTS
On March 12, 2010, the plaintiff, Robert Zalansky, filed a one-count complaint against the defendant, JC Colchester Realty, LLC, claiming negligence after the plaintiff allegedly slipped and fell on ice that had accumulated on property owned, maintained and controlled by the defendant.[1] The defendant filed a motion for summary judgment on July 28, 2010; the motion is accompanied by a memorandum of law. On October 28, 2010, the plaintiff filed an objection to the motion for summary judgment and a memorandum of law in support of his objection. The defendant filed a reply brief on November 4, 2010.
DISCUSSION
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
In the present case, the defendant argues that it had no possession or control of the subject premises because the lease between itself and the tenant explicitly bestows all control to the latter party. The plaintiff counters that the lease provisions create a question of fact as to whether the defendant retained some control over the premises.
“Retention of control is essentially a matter of intention to be CT Page 5992 determined in the light of all the significant circumstances . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee . . 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, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.” (Emphasis in original; internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).
Paragraph two of article six of the lease states in relevant part: “The Tenant accepts the Premises in “AS IS” condition. The Landlord shall have no obligation whatsoever with respect to the maintenance or repair of the Premises . . . all of such maintenance to be undertaken by the Tenant at the Tenant’s expense.” However, the next paragraph in article six reads: “The Landlord reserves the right to perform all maintenance or repairs, or any portion thereof, that it elects, including all of the items described above, in the event the Tenant does not timely and appropriately undertake and complete the same . . .”
In his complaint, the plaintiff alleges that the icy condition that caused his fall had existed for such a length of time that the defendant, in the exercise of reasonable care, could and should have known about it yet failed to take proper steps to maintain and repair the area. Thus, based on the language in the lease agreement, a genuine issue of material fact exists as to whether the defendant maintained control over the premises where the plaintiff was allegedly injured. The defendant has not met his burden of proving the nonexistence of any material facts and thus summary judgment is inappropriate.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is hereby denied.
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