Norwich Housing Authority v. David Izzarelli (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

FACTS:

This is the second summary process action concerning these parties, plaintiff landlord Norwich Housing Authority and its tenant, defendant David Izzarelli.   A chronology of events may be enlightening.

On December 29, 2008, the plaintiff landlord gave a pretermination (Kapa) notice to the defendant tenant, asserting that the tenant, Izzarelli, breached the terms of the lease by allowing an unauthorized occupant and dog to remain in the premises.   The notice further asserted that these breaches constituted a nuisance.   The plaintiff landlord further alleges that, despite providing a 21-day period to cure, the tenant continued to breach the terms of the lease, furthering the nuisance.   The plaintiff landlord subsequently served a notice to quit upon the tenant and his occupant, followed by a summary process action.   That action (21-17460) was dismissed on June 17, 2009 because this court determined the notice to quit to be equivocal and, therefore, insufficient.

On August 7, 2009, the plaintiff landlord served a new notice to quit upon the defendant tenant and his occupant.¹  On November 5, 2009, the defendant filed a motion to dismiss claiming (1) the plaintiff was required to file a new pretermination (Kapa) notice,² before serving a new notice to quit and (2) the new notice to quit is invalid as it does not specify the acts which constitute the alleged lease violation and nuisance upon which the summary process action is based.

On December 1, 2009, the court heard oral argument on the motion to dismiss.   The defendant requested and received additional time to respond to the plaintiff's memorandum in opposition to his motion to dismiss.

On December 14, 2009, the defendant filed a “supplement” to his motion to dismiss.   This supplement, rather than refuting the argument of the plaintiff in its memorandum, raises a new, third, ground to dismiss, that the original pretermination notice was defective in that it did not clearly inform the defendant of a right to remedy.   It must be noted that the pretermination notice relied upon by the plaintiff is the same notice utilized in the prior action.

LEGAL STANDARD:

Practice Book § 10-31 provides in relevant part:

(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter ․ See also St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

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.  State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001).

Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005):

․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.   (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․”

Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

Because of the summary nature of this summary process remedy, the statute granting it must have been narrowly construed and strictly followed.   Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).   As summary process is a statutory creation, this court's jurisdiction is predicated upon compliance with such statutes, including General Statutes § 47a-15, which requires a valid pretermination notice.   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).

DISCUSSION:

In order to address all three grounds asserted by the defendant, it is necessary to place them in order.   As to whether the new, subsequent notice to quit is valid is dependent upon the validity of the prior pretermination notice.   Therefore, the court must address the issues in the following order:  (1) whether the plaintiff Housing Authority is required to serve a valid pretermination notice upon the defendant tenant within six months of service of a notice to quit;  (2) if not, whether this pretermination notice is valid and sufficient;  and (3), if so, whether the notice to quit is valid and sufficient.

Section 47a-15 of the Connecticut General Statutes requires a prerequisite notice of noncompliance with the terms of the lease be given to the tenant which allows the tenant 15 days to remedy the noncompliance;  otherwise the rental agreement “shall terminate.”   This is known as a pretermination or Kapa notice.³

The plaintiff housing authority alleges that, on December 29, 2008, it delivered a pretermination notice to the defendant tenant.   Following the court's determination that the subsequent notice to quit served on the defendant was equivocal and, therefore, invalid, another notice to quit was served on August 7, 2009.   Until that time, the lease had not been terminated.  “[A] notice to quit will not terminate a lease if the notice itself is invalid.   Indeed, it is self-evident that if the notice is invalid, then the legal consequence of ‘termination’ arising from the service of a valid notice does not result.”  Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 134, 561 A.2d 1365 (1989).

General Statutes § 47a-15 states, in relevant part, “Prior to the commencement of a summary process action, ․ if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, if such breach can be remedied by repair by the tenant ․ and such breach is not so remedied with such fifteen-day period, the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate;  or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive.”

The parties agree that the issue of whether a notice to quit must be served within six months of a pretermination notice is one of first impression.   The tenant interprets General Statutes § 47a-15 as requiring a notice to quit be served upon him within six months of the issuance of the pretermination notice.   The housing authority believes there is no time limit if the breach was not cured or it recurred within six months.

The statute provides that, if the tenant cures the breach but, within six months, a breach recurs, the landlord may bring termination proceedings against him pursuant to sections 47a-23 to 47a-23b, inclusive.   In the complaint, the housing authority does not allege that the defendant failed to remedy the breach or that the tenant remedied the breach and that there was a recurrence within the next six months.   The housing authority argues that the breach is not remediable.   The court disagrees and refers to the housing authority's own pretermination notice as evidence of the housing authority's recognition of remediation.   The tenant could have remedied the breach by removing the occupant and her dog from the premises.   The pretermination notice stated as much:  “You have the right to cure these violations within 21 days of receiving this letter by having your girlfriend and her dog leave the premises NOW.” [Emphasis in original.]

The facts of this action differ from that of Housing Authority v. Martin, 95 Conn.App. 802, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006).   In that matter, the violation was not remediable.   The tenant's son had engaged in criminal conduct.   The pretermination notice stated that the violation was not remediable.  “We conclude therefore that there was no need to allege that there was a continuing violation.   If a violation is not remediable, it is irrelevant if it continues.”  Id. at 814.   As stated, the instant action's claimed breach was remediable.

As the alleged violation of the lease was remediable, the court next considers the issue of timing.   The triggering dates here are the date of the pretermination notice, December 29, 2008 and the date of the operative notice to quit, upon which the housing authority seeks to terminate the lease, August 7, 2009.   More than six months time elapsed between these two dates.   If the tenant failed to cure the violation or the violation recurred, the housing authority had six months to file its valid notice to quit.   The housing authority failed to do so, thus depriving this court of jurisdiction.⁴

The remaining grounds of the defendant's motion to dismiss are not reached.

CONCLUSION AND ORDER:

The defendant's motion to dismiss is hereby granted.

The Court,

Robert E. Young, Judge

FOOTNOTES

FN1. The alleged occupant, Peggy Lee Riley, has not filed an appearance in this action to date..  FN1. The alleged occupant, Peggy Lee Riley, has not filed an appearance in this action to date.

FN2. The defendant also alleges that the federal notice requirements were insufficient.   However, as these requirements customarily are contained in the pretermination notice, they are considered along with the pretermination notice requirements for the purposes of the motion to dismiss as there are no issues solely related to the federal notice requirements..  FN2. The defendant also alleges that the federal notice requirements were insufficient.   However, as these requirements customarily are contained in the pretermination notice, they are considered along with the pretermination notice requirements for the purposes of the motion to dismiss as there are no issues solely related to the federal notice requirements.

FN3. The phrase “Kapa notice” comes from Kapa Associates v. Flores, 35 Conn.Sup. 274, 408 A.2d 22 (1979), which requires a landlord seeking to evict on the basis of specifically enumerated conduct of a tenant to notify the tenant of the particular acts or omissions forming the basis of the termination and the fact that he or she is entitled to fifteen days to rectify the misuse.   See General Statutes § 47a-15..  FN3. The phrase “Kapa notice” comes from Kapa Associates v. Flores, 35 Conn.Sup. 274, 408 A.2d 22 (1979), which requires a landlord seeking to evict on the basis of specifically enumerated conduct of a tenant to notify the tenant of the particular acts or omissions forming the basis of the termination and the fact that he or she is entitled to fifteen days to rectify the misuse.   See General Statutes § 47a-15.

FN4. The court recognizes that there was an intervening action.   However, that action was dismissed on June 17, 2009.   The housing authority had ample time to file a valid notice to quit to avoid the lapse of time issue upon which this decision is grounded..  FN4. The court recognizes that there was an intervening action.   However, that action was dismissed on June 17, 2009.   The housing authority had ample time to file a valid notice to quit to avoid the lapse of time issue upon which this decision is grounded.

Young, Robert E., J.