Phyllis Axelrod, Trustee v. LLC (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Plaintiff landlord brought this summary process action by Complaint dated September 28, 2010 predicated upon on a Notice to Quit served on defendant tenant on September 21, 2010.   The matter involves a commercial tenancy.   By Motion dated October 18, 2010, defendant seeks to dismiss the Second and Third Counts of plaintiff's Complaint.   Plaintiff filed an Objection dated November 1, 2010 and the parties presented oral argument before the court on November 8, 2010.

“The standard of review for a court's decision on a motion to dismiss is well settled.   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citations omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007).

Plaintiff's Second Count is based on the allegation that any right or privilege defendant may have possessed to occupy the premises has terminated.   Defendant argues that the Notice to Quit does not cite this as a reason for terminating the lease and, as a result, the Second Count should be dismissed.   A valid notice to quit is a mandatory condition precedent to a court's exercise of subject matter jurisdiction over a summary process action.  Lampasona v. Jacobs, 209 Conn 724, 728-29, cert. denied, 492 U.S 919 (1989).

The Notice to Quit at issue lists six reasons for termination of the lease.   The sixth reason lists both types of unauthorized occupancy, specifically no right or privilege to occupy and expiration of any right or privilege to occupy:  “Unauthorized occupancy:  You never had the right or privilege to occupy the premises;  any right to occupy the premises has terminated or expired.”   The court rejects defendant's argument that this language does not serve to support the claim that any right or privilege defendant may have possessed to occupy the premises has terminated.   The question is, rather, whether the combination of the two types of unauthorized occupancy in one clause renders the Notice to Quit equivocal and, as a result, invalid.   See, e.g., Waterbury Twin v. Renal Treatment Centers-Northeast, 292 Conn. 459, 473 n.18 (2009).   While the court agrees that the Notice to Quit would have been clearer had plaintiff had listed the two types of unauthorized occupancy as separate reasons for termination, the use of the above-referenced language does not render the Notice to Quit equivocal.  “[I]t would be the height of hypertechnicality to hold this notice to quit defective.”   Thomas E. Golden. 581, citing Southland Corporation v. Vernon, 1 Conn.App. 439, 452-53 (1984).   As a result, defendant's Motion to Dismiss the Second Count is hereby denied.

Defendant also seeks dismissal of the Third Count, which is founded on the allegation that defendant violated the rules and regulations of the landlord.   Defendant maintains that plaintiff failed to serve it with a pre-termination, or “Kapa,” ¹ notice detailing the specific violations and giving the defendant an opportunity to cure, as required by General Statutes § 47-15.   While there is a split of authority at the Superior Court level regarding the issue of whether Kapa notices are required in commercial cases, the court is convinced that such a requirement only relates to dwelling units and was not required in this case.   See, Drew v. Hiller, Docket No. SNSP-031882, Judicial District of Stamford-Norwalk-Housing Session (October 27, 2005, Pinkus, J.) [40 Conn. L. Rptr. 700].

However, this does not serve to absolve plaintiff from any responsibility to provide details about the specific violations in the Notice to Quit, which simply cites “Violations of Rules and Regulations of Landlord” as the reason for termination.  “ ‘Meaningful notice is a prerequisite for due process.   It is not sufficient to apprise the defendant that he is in violation of the rules and regulations without specifically stating which particular paragraph or number of the rules and regulations he has violated.’   Housing Authority of the City of Bridgeport v. Rogers, Superior Court, Judicial District of Fairfield, Housing Session, Docket No. SPBR 9109 20758 (March 2, 1992, Leheny, J.) [6 Conn. L. Rptr. 174].   Moreover, ‘[A] notice, which lends itself to multiple interpretations, is defective for lack of specificity.   A tenant is not required to guess the actual reason for the summary process action.’   Bank of Hartford, Inc. v. Bultron, Superior Court, Judicial District of Hartford-New Britain, Housing Session, Docket No. SPH 9206 65684 (December 3, 1992, Holzberg, J.).”  Plainville Housing Authority v. Galka, Docket No. NBSP-053968, Judicial District of New Britain-Housing Session (Jun. 1, 2010, Gilligan, J.).   Defendant's Motion to Dismiss the Third Count of the Complaint is hereby granted based on plaintiff's failure to provide specific information about the alleged violations in the Notice to Quit.

James W. Abrams, Judge

FOOTNOTES

FN1. Kapa Associates v. Flores, 35 Conn.Sup. (1979)..  FN1. Kapa Associates v. Flores, 35 Conn.Sup. (1979).

Abrams, James W., F.S.M.