Nicholas Granitto v. Florence Banks et al. (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S APPLICATION FOR STAY OF EXECUTION DATED FEBRUARY 28, 2011

The two defendants, Florence Banks and her daughter Cassandra Banks, were owners of a single-family house at 9 Miltades Avenue, Riverside, Connecticut, in Greenwich, Connecticut.   A partition action was commenced by Daniel Banks, one of the other co-owners of 9 Miltades Avenue, returnable to the Superior Court, J.D. of Stamford/Norwalk at Stamford on November 14, 2006, Docket Number FST CV 06–5002648 S. All the owners of 9 Miltades Avenue property were parties in that partition action.   Pursuant to a Stipulated Judgment dated November 17, 2008, the court entered judgment on November 17, 2008, Mintz, J. (# 137.00 in FST CV 06–5002648 S).  Thereafter the court appointed a Committee.   The Committee thereafter sold the property at 9 Miltades Avenue to the plaintiff, Nicholas Granitto.   This Committee's sale to Nicholas Granitto was approved by the court, Mintz, J., by a Memorandum of Decision dated July 16, 2010 (# 149.00 in FST CV 06–5002648 S).  That decision stated:  “Accordingly, in light of the above discussion as well as equitable considerations, the court, granting the motion for approval of the contract, approves the sale, and grants the committee's motion for possession.   The court, however, orders the committee to refrain from ejecting Florence and Cassandra Banks from the property.   Any ejectment proceedings are left to the purchaser, once the sale has been completed.” (# 149.00 in FST CV 06–5002648–S, page 9.) The November 17, 2008 Stipulated Judgment stated in paragraph 1.d. “Defendants agree to vacate the Property as requested by the Committee or ordered by the Court including, but not limited to, at the time and in the manner requested by the Committee or ordered by the Court.” (# 137.00 in FST CV 06–5002648 S, page 2.) In addition the Stipulated Judgment dated November 17, 2008 as ordered by the court, Mintz, J. (# 137.00 in FST CV 06–5002648 S) on page 2 in paragraph 1.c. stated:  “Defendants agree to comply with and not obstruct the listing, showing and/or sale of the Property.”

On August 11, 2010 the two defendants appealed from the court's July 16, 2010 decision, Mintz, J., (# 150.00 in FST CV 06–5002648 S).  The defendant's appeal was dismissed by the Appellate Court on November 10, 2010 (# 153.00 in FST CV 06–5002648 S).  On December 6, 2010 the defendants filed a Motion to Open Judgment addressed to both the court's November 17, 2008 Stipulated Judgment and the court's July 16, 2010 Memorandum of Decision (# 132.00 and # 156.00 in FST CV 06–5002648 S).  After a hearing on February 7, 2011, the court, Mintz, J., denied the defendant's Motion to Open Judgment and issued a JDNO written decision on February 10, 2011 (# 156.86 in FST CV 06–5002648 S).  The defendants took no further appellate action after the November 10, 2010 dismissal of the appeal.   The defendants did not appeal the February 10, 2011 denial of the Motion to Open Judgment and that appeal period has lapsed.

Nicholas Granitto as the plaintiff commenced this instant summary process action against the two defendants, Florence Banks and Cassandra Banks.   The defendants appeared Pro Se and filed answers and special defenses alleging that they still had title to 9 Miltades Avenue, that their Motion to Open the Judgment in FST CV 06–5002648 S had been filed but had not been heard and ruled on and that they owned title to 9 Miltades Avenue by adverse possession.   The pleadings in this Summary Process case were closed and all parties appeared at trial before the court, Moore, J. The summary process matter was tried to a conclusion.   On February 24, 2011 the court, Moore, J., issued a Memorandum of Decision in this summary process matter finding that the plaintiff, Nicholas Granitto, sustained his burden of proof and rejecting the claims and special defenses of the defendants.   The court ordered immediate possession in favor of the plaintiff, Nicholas Granitto, as against the two defendants, Florence Banks and Cassandra Banks.   Based on the grounds of the summary process complaint, the defendants were eligible to apply for a stay of execution for up to six months.  Gen.Stat. § 47a–39.

The defendants did not appeal from nor file any motions directed to the court's February 24, 2011 Memorandum of Decision.   The appeal period from that decision has passed and more than twenty days has elapsed from the February 24, 2011 decision.

The defendants filed this Application for Stay of Execution on February 28, 2011 utilizing form JD–HM–21 Rev. 4–09.   The matter was assigned for a hearing on March 10, 2011, the day this court was assigned to preside over the Housing Session at Norwalk.   Both parties appeared:  Nicholas Granitto by counsel of record and the two defendants, Pro Se. The court conducted evidentiary hearings on March 11, 2011, March 12, 2011, March 17, 2011 and March 22, 2011.   All three parties testified.   The plaintiff offered the testimony of a real estate appraiser to assist the court in understanding the issues surrounding 9 Miltades Avenue.   That real estate expert testified that the fair market rental for the single-family house at 9 Miltades Avenue was $2,800–$3,000 per month.   A large amount of documents were offered, some of which were accepted as full exhibits.   The court reviewed the partition litigation in FST CV 06–5002648 S and took judicial notice of portions of that file.   Portions of the FST CV 06–5002648 S file were present in the Housing Session courtroom and were examined by all parties.

The stay of execution statute at issue states:

Upon the hearing on such application in the Superior Court the judgment of the trial court shall stand, but upon such hearing if it appears that the premises, judgment for possession or occupancy of which has been rendered, are used for dwelling purposes and are not excluded by the provisions of section 47a–36;  that the applicant cannot secure suitable premises for himself and his family elsewhere within the city or town or in a city or town adjacent thereto in a neighborhood reasonably comparable to that in which the premises occupied by him are situated;  that he has used due diligence and reasonable effort to secure other premises;  that his application is made in good faith, and that he will abide by and comply with such terms and provisions as the court may prescribe, the court may grant a stay of execution for a period or for periods in the aggregate not exceeding six months from the date of the judgment in the summary process action upon such conditions and terms as appear fair and equitable, except that such stay of execution shall not exceed three months in the aggregate if the reason for the judgment against the defendant was nonpayment of rent;  provided in the case of an applicant who is a resident in a mobile manufactured home park and owns his own unit and has received notice pursuant to subparagraph (E) of subdivision (1) of subsection (b) of section 21–80 or an applicant who is a conversion tenant, as defined in section 47–283, or who at the time of conversion was residing in a dwelling unit in a building or on property which has been declared a conversion condominium, at the end of such six-month period the court may extend such stay of execution under the same or different conditions and terms for an additional period not exceeding nine months taking into consideration the age of the applicant, the size of the applicant's family, the length of time of such applicant's tenancy and the availability of suitable alternative housing.   Such extended stay may be reviewed every two months.   The court shall consider all the circumstances of the case, the equities involved and whether any undue hardship would result to either party.   Such conditions and terms may include the requirement that the applicant shall pay to the plaintiff in the summary process action such amount in such installments from time to time and in such manner as the court may direct, for the use and occupancy of the premises for such period of the stay, at the rate to which he was liable as rent for the month immediately prior to the expiration of his term or tenancy, if any, and any assessment for current common expenses not already included in the rent as provided in subsection (b) of section 47–76, if any, or such sum as may be determined by the court to be reasonable for such use and occupancy.   Such payment shall also include all rent unpaid prior to the period of such stay.

Gen.Stat. § 47a–39.

The court has reviewed this summary process court file, the testimony and exhibits offered, has taken judicial notice of the partition action FST CV 06–5002648 S and has applied the factors and standards set forth in Gen.Stat. § 47a–39.

The court finds that 9 Miltades Avenue is a single-family house occupied by the two defendants as their dwelling.   The court finds that the plaintiff, Nicholas Granitto, paid $611,925 to purchase 9 Miltades Avenue, that he is the sole owner of the property, that any and all ownership interests in and to 9 Miltades Avenue of the two defendants has been extinguished by the judgment in the partition action, that the plaintiff intends to demolish the single-family house at 9 Miltades Avenue in order to construct a new single-family house, that the single-family house at 9 Miltades Avenue may be more than sixty years old and in any event is subject to the Town of Greenwich demolition ordinance, which must be followed by the plaintiff, that Florence Banks's financial affidavit on file with the Superior Court and the Appellate Court in FST CV 06–5002648 S indicates assets of less than $2,000 and no income, that Florence Banks was found to be indigent on August 11, 2010 by a Judge of the Superior Court and that no evidence was provided before the undersigned that Florence Banks's financial condition has changed since August 11, 2010.   Cassandra Banks stated that she has insufficient money to move.   The court further finds that 9 Miltades Avenue was originally listed for sale at $988,000 in FST CV 06–5002648 S, that the fair market value of the land at 9 Miltades Avenue as determined by the Town of Greenwich Assessor in a town-wide assessment was approximately $1,019,600 as of October 1, 2010, that the Greenwich Assessor reduced the fair market value a few months later to $917,700, that a similar real property at 17 Miltades Avenue sold on July 29, 2010 for $850,000 on a .22–acre site, which when the land portions are compared to the 9 Miltades Avenue .35–acre site, is the equivalent of a fair market value for the land 9 Miltades Avenue of $1,162,649.   The court has considered these financial circumstances of the three parties in rendering the orders in this Application.

The economic factors balance heavily in favor of granting the defendant's stay of execution.  Gen.Stat. § 47a–39 states:  “․ the court may grant a stay of execution for a period or for periods in the aggregate not exceeding six months from the date of the judgment in the summary process action.”   The judgment in this summary process action is dated February 24, 2011.   Since the eviction was not based on non-payment of rent the stay is not limited to three months.   Therefore the maximum stay of execution that this court can grant is six months from February 24, 2011.   August 24, 2011 is six months from the date of the summary process judgment.   No party offered the court with any other method of calculation of the six months other than using the 24th day of the sixth month.

The court further believes that this order will provide the defendants with sufficient advance notice of the date that they must vacate in order to secure another residence.   The court also believes that this order should contain “such conditions and terms as appear fair and equitable.”   The court has sufficient financial and other information before it of the parties to conclude that “such conditions and terms” shall not include the requirement that the defendants pay any use and occupancy to the plaintiff during the stay of execution.

The court grants the defendant's Application for Stay of Execution dated February 28, 2011 and enters the following orders:

1. A stay of execution of the court's February 24, 2011 judgment shall enter.

2. The stay of execution shall expire on Wednesday, August 24, 2011.

3. The plaintiff shall be entitled to the issuance of an execution on or after August 25, 2011 against both defendants, unless an execution is ordered by the court for an earlier date.

4. This stay of execution shall permit only the defendant, Florence Banks, and/or the defendant, Cassandra Banks, and Cassandra Banks' minor children to occupy the premises at 9 Miltade Avenue, Riverside, Connecticut during the period the stay of execution is in full force and effect.

5. The defendants shall not be obligated to pay to the plaintiff any sums for use and occupancy until the execution is issued.

6. The plaintiff shall have the right to conduct any number of inspections of the interior of the building at 9 Miltades Avenue upon 24 hours advance notice furnished to the defendants.   This right of inspections shall permit the plaintiff' and/or his agents, employees and representatives to inspect the interior of the buildings for any purposes, including but not limited to determining the presence of asbestos, toxic materials, environmental conditions and location of utility services.   The plaintiff shall indemnify and hold harmless the defendants from any and all liability, claims, demands and damages including attorney fees incurred by the defendants to defend, in regard to said interior inspections.

7. The plaintiff shall have the right to conduct any number of inspections of the exterior of the premises of 9 Miltades Avenue at any time without advance notice furnished to the defendants.   This right of inspections shall permit the plaintiff and/or his agents, employees and representatives to inspect the exterior of the buildings and the land for any purposes, including but not limited to surveying, measuring, soil and drainage inspection, environmental conditions, tree work and access to the railroad right of way.   The plaintiff shall indemnify and hold harmless the defendants from any and all liability, claims, demands and damages including attorney fees incurred by the defendants to defend, in regard to said interior inspections.

8. The plaintiff shall have the right to conduct any number of tests and underground inspections on the land, not the buildings, at 9 Miltades Avenue upon 48 hours advance notice furnished to the defendants.   This right of testings and underground inspections shall permit the plaintiff and/or his agents, employees and representatives to excavate and conduct underground tests of the land for any purposes, including but not limited to soil testing, soil excavation, toxic materials, environmental conditions, locating future utilities and utility hook ups, locating current utilities, pipes, conduits, wires, and shut off systems and current and future drainage systems.   The plaintiff shall indemnify and hold harmless the defendants from any and all liability, claims, demands and damages including attorneys fees incurred by defendants to defend, in regard to said exterior tests and underground inspections.

9. Order # 8 will permit the plaintiff and/or his agents employees and representative to dig and excavate the land in order to perform these tests and underground inspections.   At all times during the conducting of those tests and underground inspections, the plaintiff and/or his agents, employees and representatives shall keep the disturbed area safe and secure.   All portions of the land disturbed by said tests and underground inspections shall be returned to its former state by the end of each work day at plaintiff's cost.   The plaintiffs shall indemnify and hold harmless the defendants from any and all liability, claims, demands and damages including attorneys fees incurred by defendants to defend, in regard to said exterior testings and underground inspections.

10. The 24–hour and/or 48–hour notice to the defendants shall be given by the plaintiff, not his agents, employees and representatives.   The plaintiff shall immediately provide to the defendants his current office address, office telephone number, office fax number and office e-mail.   The plaintiff shall deliver said addresses and numbers to the defendants by regular mail and by plaintiff's delivery of a notice to 9 Miltades Avenue The defendants by e-mail and/or fax shall give the plaintiff the defendant's e-mail address and the defendant's fax number.   The notices given by the plaintiff to the defendants by either e-mail or fax shall satisfy said 24–hour and 48–hour notice.   In the event such e-mail and/or fax notice cannot be given to the defendants or such numbers are not provided to the plaintiff notice shall be given by the plaintiff to the defendants by delivering to the premises at 9 Miltades Avenue a written notice that will state the date, time, purpose of each entry onto or into the property, and the names, addresses and telephone numbers of the plaintiff's agents, employees and/or representatives entering onto or into the premises.

11. The plaintiff and/or his agents, employees, and representatives shall have the right to install a demolition notice sign on the premises of a size, dimension and location solely determined by the plaintiff and/or his agents, employees and representatives.   This demolition notice sign shall be in compliance with the Town of Greenwich demolition ordinances and its procedures.   Neither the defendants nor any agent or representative of the defendants shall destroy, remove, deface, cover or otherwise directly or indirectly interfere with the sign and its location.   The demolition notice sign shall remain on the property until both defendants vacate 9 Miltades Avenue.

12. The plaintiff intends to demolish the buildings at 9 Miltades Avenue as soon as the defendants vacate.   The intent of these orders is to give the plaintiff access to the entire premises so that during the period of this stay of execution the plaintiff can comply with the notice and other procedures of the Demolition Ordinances of the Town of Greenwich, its insurance requirements, notices to the Department of Public Works of the Town of Greenwich, Sewer Department of the Town of Greenwich, Building Department of the Town of Greenwich, Department of Health of the Town of Greenwich, and the Inland Wetlands and Watercourses Agency of the Town of Greenwich, utility services that will be disconnected only upon the defendant's vacating, locate current utility lines and appurtenances, locate sewer lines and pipes, notices, if needed, to the Greenwich Historical Society, Historical District Commission of the Town of Greenwich and the Riverside Association, the Connecticut licensed demolition contractor, the debris removal contractor, surveyor, contractors and subcontractors for the construction of the new house, site plan preparation, engineers, architects and representatives of insurance companies.   All of the above are classified in this order as being “representatives of the plaintiff.”   This list is not exhaustive

13. Nothing in this order shall be construed to prevent any person, entity and/or governmental agency from accessing the interior and exterior of 9 Miltades Avenue during the period of the stay of execution provided that their right of access is permitted and/or required by law.   Nothing in this order shall be construed to require any of the persons, entities and/or governmental agency mentioned in this order to give notice to the defendants for access to the interior and exterior of 9 Miltades Avenue during the period of the stay of execution provided their right of access is permitted and/or required by law.   All other access shall be subject to the advance notice provisions of this order.

14. The defendants shall not interfere, block, disrupt or obstruct, directly or indirectly, the plaintiff and/or his agents, employees and/or representatives from conducting said inspections and tests set forth in paragraphs 6, 7, 8, 9 and 12 of this order.   The defendants shall not have the right to delay, postpone, continue, modify or object to said inspections and tests set forth in paragraphs 6, 7, 8, 9 and 12 of this order.   The defendants and/or the plaintiff shall be permitted to file a motion in the Superior Court Housing Session of Norwalk for any clarification, modifications, and/or relief from any aspect of this order.   This right to apply to the court granted to the defendants shall not permit the defendants, directly or indirectly, to delay, postpone, continue or modify the said inspections and/or tests unless and until ordered by a court.

15. In the event the defendants violate any of the conditions of this order, the plaintiff may move to terminate the stay of execution and for the issuance of an immediate execution in accordance with P.B § 17–53 and the hearing procedures under P.B. § 17–53.

16. The defendants shall vacate the land and buildings at 9 Miltades Avenue, Riverside, Connecticut no later than August 24, 2011.   The defendants shall remove all of their personal property from 9 Miltades Avenue no later than August 24, 2011 at their own cost and expense.   Any personal property located on the land and/or building at 9 Miltades Avenue after August 24, 2011 shall be considered to be abandoned by the defendants, thus permitting the plaintiff to dispose of said personal property free and clear of any liability, claims, demands and damages by either or both of the defendants as to the personal property.

17. The plaintiff, his agents, employees and representatives shall not interfere with the defendant's right of occupancy nor interfere with disrupt or disturb the defendants' use of the utilities and sewer presently on 9 Miltades Avenue.

18. The judge assigned to the Housing Session of Norwalk, the undersigned or any judge, senior judge or judge trial referee of the Superior Court shall have continuing jurisdiction over the terms, conditions and enforcement of this order.

19. This order is effective immediately.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.