John Lehaney et al. v. Joseph R. Donahue et al. (2010)

MEMORANDUM OF DECISION RE TEMPORARY RESTRAINING ORDER MOTION # 101 and PREJUDGMENT REMEDY MOTION # 100.31

This case comes to this court for a Temporary Restraining Order and a Prejudgment Remedy.   The court heard the testimony of the parties and the evidence introduced at the proceedings.   In a temporary restraining order there must be clear and convincing evidence to establish the relief sought.   The plaintiff seeks to restrain Patricia Donahue from entering the premises at 939 High Ridge Road, Stamford, Connecticut.   He is entitled under the lease to quiet enjoyment of the premises.   The court finds that although there have been problems in the past, the current level of complaint does not reach the level of interfering with quiet enjoyment.   The defendant, Patricia Donahue, is put on notice if that level increases there may be a violation of the covenant of quiet enjoyment.

The plaintiff further seeks an acknowledgment of the plaintiff's right in the leasehold.   The plaintiff agrees that the notice to renew was not given in 90 days but rather given 17 days before the expiration of the lease.   The plaintiff claims under Connecticut case law that in balancing the equities that is a sufficient notice.   The court finds that is something that needs a complete trial and it is relief that the plaintiff is not presently entitled to.   It should come about as the result of a trial and it need not be adjudicated at this point prior to the full hearing on the merits.

Plaintiff also claims that it has a right to purchase the property at 939 High Ridge Road. Based on the evidence there was a transfer of the property.   Paragraph 24 of the lease provides for a first refusal.   The provisions are:  “sell the property and retail gasoline business located at 939 High Ridge Road, Stamford, Connecticut.”   There has been no evidence that a sale took place or that there was a decision to sell.   Also it is a first refusal.   What is contemplated is a real sale where the defendants say we are selling our property for a million, do you, Mr. Lehaney want to buy?   It is not reflective of the type of transfer that took place in this case.

As to the prejudgment remedy, where the burden of proof is probable cause, the court finds that burden has not been met.   In this case, the plaintiff testified that he is taking home $125,000 from the business.   He did not introduce that this amount had been reduced.   The working conditions were less than good, but there is no evidence of a diminution in his wages.   Accordingly, the court finds this is premature.

Accordingly, the relief sought in the Temporary Restraining Order is denied.   Accordingly, the Prejudgment attachment is denied.

The court finds that under the statutes this case belongs in housing court and accordingly is transferred for all further proceedings to the housing court.

So Ordered.

BY THE COURT

Hon. Edward R. Karazin, Jr.

Judge Trial Referee

Karazin, Edward R., J.T.R.