Anna Pollansky v. Steven Pollansky et al. (2013)

ORDER RE PLAINTIFF'S MOTION FOR DISTRIBUTION OF APPEAL BOND

The plaintiff, Anna Pollansky, seeks an order of this court releasing the appeal bond ordered by this court pursuant to General Statutes § 47a–35a.   Having reviewed the file in this matter, and the submissions, the court concludes that plaintiff is entitled to a substantial portion of the bond, and hereby orders that the Clerk of the Court issue to her a check in the amount of $29,250.

By way of background, on May 11, 2012, the defendants appealed this court's decision, dated May 7, 2012 [54 Conn. L. Rptr. 24], rendering judgment of possession in favor of the plaintiff in this summary process action.   The defendants did not file a surety bond or ask the court to fix one pursuant to General Statutes § 47a–35a.   The plaintiff filed, in the Appellate Court on May 22, 2012, a motion to terminate the automatic stay due to the defendants' failure to post a bond.   That motion and the defendants' objection were referred to this court.

After a hearing on October 12, 2012, the court ordered the defendants to post a surety bond in the amount of $39,000, which amount was based on the rental value of the property over a two-year appeal period.   In particular, the court found that “a bond is necessary in this case to protect the plaintiff from potential harm that could ensue from her inability to sell or rent the property during the pendency of the defendants' appeal.”   Court's Memorandum of Decision Re:  Motion to Terminate Bond, dated October 23, 2012 [54 Conn. L. Rptr. 870].   Although the defendants were ordered to post the surety bond within five business days of the court's order, they did not do so.   Instead, the defendants filed motions for articulation and reconsideration claiming, among other things, that they could not secure a bond even though they were in possession of $39,000 cash.   Ultimately, on January 11, 2013, the court issued the following order:  “Defendants' motion for reconsideration is granted.   The defendants are ordered to satisfy the bond requirement by filing with the Court Clerk a certified bank check made payable to the clerk, Superior Court in the amount of $39,000.00.   Payment must be made to the Rockville clerk's office at 69 Brooklyn Street on or before 01/18/13 at 4 p.m.”

Court records reflect that on January 17, 2013, the court received a $39,000 bank check from the individual defendant, Darby Pollansky.

The appeal was prosecuted by the defendants and on July 16, 2013, the Appellate Court affirmed the trial court's decision.  Pollansky v. Pollansky, 144 Conn.App. 188, 71 A.3d 1267 (2013).   The defendant's petition for certification to the Supreme Court was denied on October 2, 2013.   Pollansky v. Pollansky, 310 Conn 919 (2013).

The appeal process having concluded, the plaintiff seeks an order of the court distributing a portion of the appeal bond to compensate her for her losses during the appeal and certain future losses.   The parties appeared before the court on November 1, 2013 on the plaintiff's motion for distribution of the appeal bond, and agreed that they would file written submissions on the amount of the cash bond to be distributed to the plaintiff, and that the court would then consider the matter on the written submissions.

On November 7, 2013, the plaintiff filed a written submission.   None of the defendants filed anything regarding the release of the bond.

On November 5, 2013, the defendant, Skyland Properties, LLC, filed a notice that it had filed a Chapter 7 bankruptcy petition in federal court, and that the matter, as to Skyland, is stayed.

The purpose of an appeal bond is to protect the plaintiff landlord in receiving rent and occupancy payments from the premises during the period of the appeal.  City of Norwich v. Shelby–Posello, 140 Conn.App. 383, 388, 59 A.3d 239 (2012).   The failure to file a bond subjects the appeal to dismissal.  Id.;  Young v. Young, 249 Conn. 482, 733 A.2d 835 (1999).

The period of appeal in this case was from May 11, 2012, when the defendants filed their appeal, to October 12, 2013, after the Supreme Court denied certification and the ten days to seek reconsideration had expired.   The court has already determined that the yearly rental for the property which the plaintiff has been unable to achieve due to the defendants' occupancy of the property is $19,500 per year.   That number has not been disputed.   Because the appeal took eighteen months, the court finds that the plaintiff is due $29,250 of the appeal bond, as compensation for her losses use of the property during the appeal.

The court finds that the notice of bankruptcy stay filed by the defendant Skyland Properties, LLC does not require this court to delay releasing the bond to the plaintiff because the bond was not posted by or on behalf of Skyland Properties, LLC the party which filed for bankruptcy, but rather by one of the individual defendants Darby Pollansky.   Moreover, even if the bond could be said to have been posted by or on behalf of Skyland, the appeal bond is not property of the bankruptcy estate, since the defendants lost their appeal.   In re Julian Albert Spiro, 305 B.R. 142 (D.Conn.2004).   The Second Circuit has noted that “bankruptcy courts have held that a Section 362(a) automatic stay does not prevent final judgment creditors from enforcing their judgments against the appeal bonds because [t]he debtor retains reversionary interest in an appeal bond subject to divestiture if the debtor is unsuccessful once the appeal process has been completed, and [i]f the appeal has been completed prior to the filing of the petition, and the debtor has been divested of its reversionary interest, the debtor does not have an interest in the bond that is property of the estate.”  (Internal quotation marks omitted.)   Tygris Asset Finance, Inc. v. Michael Abboud Obgyn, P.C., United States District Court, Docket No. 10–mc–794 (CBA) (E.D.N.Y. Oct. 26, 2012).

The court declines to order release of the bond funds for anything other than the value of rental payments during the appeal period.   As to damages the plaintiff may or may not have for removal of the defendants from the property, if they refuse to do so voluntarily, or damages for destruction of the property by the defendants, the court finds such claims do not arise under the statute or the court's prior orders regarding the purpose of the bond.   See Centrix Management Company, LLC v. Valencia, 145 Conn.App. 682 (2013).

Accordingly, the court orders the Clerk of the Court to issue a check to the plaintiff, Anna Pollansky, in the amount of $29,250.   The remaining amount of the bond, $9,750, shall be released to the defendant Darby Pollansky, who posted the bond with the court.

So ordered.

Cobb, J.

Cobb, Susan Quinn, J.