Anna T. Pollansky v. Steven Pollansky et al. (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS

This is a summary process action in which the plaintiff, Anna T. Pollansky, seeks to evict the defendants, Steven Pollansky, Darby Pollansky, Pollansky Construction, LLC and Skyland Properties, LLC from a certain premises located on Goose Lane in Coventry, Connecticut (“Premises”).¹  The following Memorandum of Decision addresses the Motion to Dismiss filed on behalf of defendants.

I. FACTS AND PROCEDURAL HISTORY

The record reveals the following relevant facts and procedural history.   The plaintiff commenced this summary process action by way of a complaint dated February 28, 2011.   In her complaint, the plaintiff alleges that at some time prior to 1988, the plaintiff and defendant Steven Pollansky orally agreed that he would use a portion of the Premises for an indefinite term and on a non exclusive basis.   Defendant Steven Pollansky was not charged rent for the Premises.   The Plaintiff claims that over a period of years, defendant Steven Pollansky created businesses that he operated out of the Premises, namely Pollansky Construction, LLC and Skyland Properties, LLC. Plaintiff further claims that defendant Darby Pollansky is Steven Pollansky's wife and that she is a co-owner/owner or member/manager of one or more of the co-defendant businesses that are operated at the Premises.

Plaintiff claims in her complaint that the lease has terminated for “lapse of time” and that the defendants still occupy the Premises.

On February 16, 2010, the plaintiff caused notices to quit to be served on the defendants.   The notices called for the defendants to vacate the Premises on or before February 22, 2011 for the following reason:  “Your right or privilege to occupy the premises has terminated.”

The plaintiff alleges that although the time given in the notice to quit has passed, the defendants still continue in possession of the Premises.

On March 15, 2011, the defendants, through their counsel, filed a motion to dismiss the summary process complaint.   On March 21, 2011, the plaintiff filed an Objection to the Motion to Dismiss.

II. LEGAL DISCUSSION

A motion to dismiss shall be used to assert the lack of jurisdiction over the subject matter.  Practice Book § 10–31(a).   A motion to dismiss “admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  Young v. Chase, 18 Conn.App. 85, 90 (1989).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003) citing Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996).

The Defendants have moved to dismiss the complaint on the grounds that the variance between the notice to quit and the complaint deprive the court of subject matter jurisdiction.   In considering this issue, the court is mindful that the summary process procedure is a creature of statute requiring that it be narrowly construed and strictly followed.  Jefferson Garden Associates v. Greene, 202 Conn. 128, 143 (1987);  Jo–Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600–01, 96 A.2d 217 (1953);  see also Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985);  Southland Corp. v. Vernon, 1 Conn.App. 439, 452 (1984).

In a summary process action, the notice to quit must apprise the tenant of the information the tenant needs to protect him/herself against premature, discriminatory or arbitrary eviction.  Jefferson Garden Associates, supra, 202 Conn. at 145.   Under Connecticut law, a complaint may not proceed on a theory different from one mentioned in the notice to quit.  Vogel v. Bacus, 133 Conn. 95, 98 (1946);  Kapa Associates v. Flores, 35 Conn.Sup. 274 (1979);  183 Route 81, LLC v. Erskine, No. CV–09–16316 (July 25, 2008);  First City Bank v. Scarritt, No. SPN 961225541 (Feb. 7, 1997) [19 Conn L. Rptr. 404].

In the present case, the notice to quit states that the reason for the eviction is “[y]our right or privilege to occupy the premises has terminated” which substantially complies with the statutory language of Conn. Gen Stat. § 47a–23(a)(3).   In the plaintiff's complaint, however, the plaintiff alleges that the reason for the eviction is “lapse of time” which substantially complies with the statutory language of Conn. Gen Stat. § 47a–23(a)(1)(A).   The reason stated in the plaintiff's complaint is different from the notice to quit and the court, therefore, lacks subject matter jurisdiction over this matter.

III. CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED.   Plaintiff's Objection is OVERRULED.

SO ORDERED.

BY THE COURT

LAURA F. BALDINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Attached to the plaintiff's complaint was the legal description of the subject premises..  FN1. Attached to the plaintiff's complaint was the legal description of the subject premises.

Baldini, Laura F., J.