LLC v. Brandon Lacoff (2010)

RULING ON APPLICATION FOR DISCHARGE OF LIS PENDENS (# 100.31)

The plaintiff applied to this court for an order discharging a lis pendens filed by the defendant relative to a parcel of land identified as “115R Pruchnik Estates # 21 Candlewood Shore Road, New Milford, Connecticut.”   This matter came before the court and was heard on September 20, 2010.   The application is denied.

FACTS

The application to discharge the notice of lis pendens at issue includes, as attached Schedule A, a notice of lis pendens that, according to the attachment, was filed in connection with the case of Brandon Lacoff v. Galen Kelly and James Dwy, CV 10-6004599.   The plaintiff, Noto Brothers Construction, LLC, contends that the lis pendens was filed on April 5, 2010, in an effort to defeat a right of first refusal held by the plaintiff relative to the property that is described in the lis pendens.   The plaintiff claims that the defendant, Brandon Lacoff, through a limited liability corporation, 21 Candlewood Shores, LLC, attempted to purchase the same property from its owner, James Dwy, on February 11, 2010.   In a separate action, Noto v. Dwy et al., CV 10 6002340, the plaintiff alleges that the defendant and 21 Candlewood Shores, LLC, structured the February 11, 2010, purchase agreement in a manner intended to defeat the plaintiff's right of first refusal.   The plaintiff claims that when it attempted to exercise its right of first refusal the defendant brought the action against Dwy and Kelly and recorded the lis pendens in order to prevent the plaintiff from purchasing the property at issue.

The plaintiff argues that there are a number of defects in the case of Lacoff v. Kelly, CV 10 6004599.   In that case, defendant James Dwy set forth similar arguments in his July 7, 2010, motion to strike the complaint.   There, the plaintiff did not oppose the motion to strike and on November 1, 2010, the complaint was stricken as to defendant James Dwy by the Hon. Barbara Brazzel-Massaro.¹  The plaintiff did not re-plead within fifteen days and on November 22, 2010, the appearing defendant moved for judgment.

In the present matter, the defendant contends that the plaintiff does not have standing to apply for a discharge of a lis pendens because it is not the property owner, as is required by General Statutes § 52-325a.   The plaintiff argues, in response, that it has standing to pursue this application pursuant to General Statutes § 52-325d.  General Statutes § 52-325d(4) provides in relevant part:  “[W]hen, for any ․ reason, the recorded notice of lis pendens never became effective or has become of no effect, any interested party may file a motion requesting the court to discharge the recorded notice of lis pendens.”

The defendant claims that the plaintiff does not constitute an “interested party” under General Statutes § 52-325d because it is not a “party” to the Lacoff v. Kelly case, the action in which the notice of lis pendens was recorded.   Rather, according to the defendant, only James Dwy, the record owner, could apply to discharge the notice of lis pendens.   Moreover, the defendant argues that the plaintiff did not tender a deposit, nor did it execute a contract, relative to the property at issue.   Therefore, the defendant concludes, the plaintiff did not effectively exercise its right of first refusal to purchase the property, and so it cannot be deemed an “interested party” within the meaning of that phrase as set forth in General Statutes § 52-325d.

DISCUSSSION

General Statutes § 52-325d provides that “any interested party” may file a motion for discharge of an invalid notice of lis pendens “[i]n any action” in which there might be a basis to file such a motion.   It is thus apparent that one must be a party to an action in which a notice of lis pendens was recorded in order to file a motion to discharge the notice on the basis of invalidity.   The plaintiff, here, is not a party to Lacoff v. Kelly and so has no standing to file a motion pursuant to General Statutes § 52-325d.²

Moreover, the plaintiff is not the owner of the property at issue and so it cannot proceed with an application for discharge pursuant to General Statutes § 52-325a.   See Minoli v. Minoli, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA 02 0188156 (April 3, 2003, Shay, J.) (34 Conn. L. Rptr. 442) (husband lacked standing to challenge the filing of the lis pendens because he was not the record title holder where title to family home was held by corporation in which husband held majority interest).

Accordingly, since the plaintiff cannot meet the standing requirements of either General Statutes § 52-325a or General Statutes § 52-325d, the court need not, and so does not, address the defendant's claim that the plaintiff did not effectively exercise its right of first refusal.

For the foregoing reasons, the application to discharge the notice of lis pendens is denied.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. In her ruling, the court noted that the plaintiff never served the complaint on the non-appearing defendant, Galen Kelly..  FN1. In her ruling, the court noted that the plaintiff never served the complaint on the non-appearing defendant, Galen Kelly.

FN2. The court notes that the parcel of land that is the subject of the lis pendens in Lacoff v. Kelly, and that is the subject of this application for discharge of notice of lis pendens, is the same land that is designated as “Parcel Two,” as described in a separate notice of lis pendens filed by 21 Candlewood Shore, LLC in a separate case.   In that separate case, the plaintiff is a party.   Noto Brothers Construction, LLC v. James Dwy, 21 Candlewood Shore, LLC, and Brandon Lacoff.   The latter notice of lis pendens is allegedly based on the fact that 21 Candlewood Shore, LLC, is a counterclaimant against James Dwy in the latter case..  FN2. The court notes that the parcel of land that is the subject of the lis pendens in Lacoff v. Kelly, and that is the subject of this application for discharge of notice of lis pendens, is the same land that is designated as “Parcel Two,” as described in a separate notice of lis pendens filed by 21 Candlewood Shore, LLC in a separate case.   In that separate case, the plaintiff is a party.   Noto Brothers Construction, LLC v. James Dwy, 21 Candlewood Shore, LLC, and Brandon Lacoff.   The latter notice of lis pendens is allegedly based on the fact that 21 Candlewood Shore, LLC, is a counterclaimant against James Dwy in the latter case.

Danaher, John A., J.