Melvin Thompson v. Vernon J. Leftridge (2009)

MEMORANDUM OF DECISION

This is a summary process action based on nonpayment of rent.   The plaintiff landlord, Melvin Thompson, seeks to recover possession of the premises known as 49 Spring Street, Unit A-2, Hartford, Connecticut from the defendant, Vernon J. Leftridge, Jr. The defendant filed an answer and special defenses to which the plaintiff replied and the pleadings were closed.   A hearing on the defendant's motion to dismiss the plaintiff's complaint was held on November 3, 2009.   The plaintiff was represented by counsel.   The defendant was self-represented.

The parties entered into an oral month-to-month lease of the premises at a rental rate of $1,100 per month.   The plaintiff's complaint alleges that the defendant failed to pay rent for the month of August 2009.   The defendant claims that the August rent was tendered prior to the service of the notice to quit.   At the hearing on the defendant's motion, the parties offered evidence on the contested issue of payment of rent for the month of August.   The court has weighed the evidence and assessed the testimony and credibility of the witnesses.

The defendant offered a copy of a check dated August 1, 2009 (Defendant's Exhibit A) with the inscription “August Rent” in the memo section of the check which the defendant testified was tendered to the plaintiff's post office box by certified mail.   The postal service receipt (Ex. A) bears dates of August 3 and a postmark of August 6, 2009.   Despite the absence of a written lease, the plaintiff testified that it was his policy to accept only certified or bank checks for the payment of rent.   Nevertheless, the plaintiff testified that he took the defendant's personal check to the issuing credit union and was told that there were insufficient funds to support payment of the check.   The plaintiff offered no evidence of the claimed insufficiency other than his testimony.   The defendant testified that the plaintiff held his check without depositing it and demanded a replacement or substitute check.   The defendant produced evidence of a credit union check in the amount of $1,100 which the plaintiff acknowledged was paid but claimed it wasn't received until after the notice to quit was served.

“In order to maintain an action for summary process for the nonpayment of rent, the lessor must prove a termination of the lease prior to a tender of rent by the lessee.  Simsbury Turnpike Realty v. Great A & P Tea Co., 39 Conn.Sup. 367, 370 (App.Sess.1983).   Bordiere v. Ramirez, Superior Court, judicial district of New Britain, Housing Session at New Britain, Docket No. 031769 (December 18, 1999, Tanzer, J.) [28 Conn. L. Rptr. 359];  see also Tehrani v. Century Medical Center, 7 Conn.App. 301, 304, 508 A.2d 814 (1986).”  “The rule is well established ․ that a tender of the rent, after a breach of a covenant of payment, and before the declaration of a forfeiture by some unequivocal act on the part of the lessor, saves the lessee's rights and prevents the completion of the forfeiture by the lessor thereafter.”  (Emphasis added.)  Kovner v. Dubin, 104 Conn. 112, 120, 132 A. 473 (1926).

“The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint.”  Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).   Failure of the plaintiff to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the defendant.  Id.

Based on the evidence and testimony, the court denies the motion to dismiss.   The court, however, finds that the defendant tendered the August rent prior to the service of the notice to quit and the plaintiff has failed to sustain his burden to prove, by a fair preponderance of the evidence, all the elements of the action based on nonpayment of August rent.   Based on the court's finding, it is not necessary to rule on the defendant's special defenses.   The defendant's counterclaims for damages are not proper claims for consideration in a summary process action where the sole issue is possession of the premises.

Judgment is entered in favor of the defendant.

SO ORDERED.

BY THE COURT,

Gilligan, J.

Gilligan, Robert G., J.