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LLC v. Razinski

Appellate Court of Connecticut

January 12, 2016

136 FIELD POINT CIRCLE HOLDING COMPANY, LLC
v.
ALEXANDER RAZINSKI ET AL

         Argued October 20, 2015

Page 1214

          Summary process action brought to the Superior Court in the judicial district of Stamford-Norwalk, Housing Session at Norwalk, where the court, Rodriguez, J., granted the plaintiff's motion for use and occupancy payments; thereafter, the action was withdrawn as to the defendant Xenia Razinski et al.; subsequently, the court denied the plaintiff's motion for judgment of possession; thereafter, the court granted the plaintiff's motion for judgment of possession and rendered judgment thereon; subsequently, the court denied the motion to reargue filed by the named defendant et al., and the named defendant et al. appealed to this court.

          Reversed; further proceedings.

          SYLLABUS

         The plaintiff lessor brought a summary process action seeking to gain possession of certain property occupied by the defendant lessees pursuant to the parties' written lease and agreement. The agreement provided that the transaction was governed by New York law and that all proceedings arising out of the agreement should be commenced in New York. Prior to the filing of the summary process action by the plaintiff, the defendants previously had commenced an action against the plaintiff in New York seeking, inter alia, an injunction to prevent the plaintiff from evicting them from the property. The New York court dismissed several counts of the defendants' complaint, determined that the defendants held no equitable interest in the property, granted the plaintiff's motion for summary judgment as to its counterclaim for ejectment, and held that the plaintiff was entitled to a judgment of possession. While the New York action was pending, the trial court granted the plaintiff's motion for an order requiring the defendants to make use and occupancy payments. Furthermore, the court issued an order in accordance with the statute (§ 47a-26b [d]), stating that if the defendants missed a use and occupancy payment, the clerk would mail them an order to file their answer to the complaint and, if they failed to do so within four days of when the order was mailed, judgment would be rendered for the plaintiff. The order also stated that if the defendants filed an answer within four days from when the order was mailed, the clerk would set the matter down for a hearing. Subsequently, the defendants filed an answer, special defenses, and a two count counterclaim. Thereafter, the defendants missed a use and occupancy payment and, before the New York court rendered judgment, the trial court granted the plaintiff's motion for judgment of possession without holding a hearing and rendered judgment thereon. On appeal, the defendants, who had posted a $350,000 bond and still possessed the property, claimed that the judgment of possession was ultra vires because rendering it without a hearing violated § 47a-26b (d). The plaintiff claimed that the appeal was moot because this court could not grant any practical relief, the parties' lease having expired and the New York court having determined that the plaintiff was entitled to immediate possession.

         Held :

         1. The plaintiff could not prevail on its claim that this court could not grant any practical relief because the lease had expired or because the New York court had determined that the plaintiff was entitled to immediate possession: the expiration of a lease moots an appeal in a summary process action only if the defendants no longer possess the property, and, therefore, practical relief remained available because a hearing on the merits of the appeal could result in the defendants retaining possession, recovering their $350,000 bond, or both; furthermore, the judgment in the New York court did not have any preclusive force on the trial court because the New York judgment was rendered after the judgment in the trial court, and, therefore, practical relief remained possible because it was not yet clear what the effect of the New York judgment, or the forum selection and choice of law clauses in the agreement, would have in the litigation to follow.

         2. The trial court erred by not granting a hearing on the motion for a judgment of possession because the defendants already had filed an answer when the plaintiff moved for a judgment of possession and, therefore, they were entitled to a hearing on the merits under § 47a-26b (d): an interpretation of § 47a-26b (d), which sets forth the exclusive remedy for failure to make use and occupancy payments, that would allow the court to render a judgment of possession for failure to make a use and occupancy payment when the defendants had already filed an answer would punish the defendants for having timely and expeditiously filed an answer and would encourage delayed filing, which would frustrate the purpose of summary process proceedings to provide an expeditious remedy to landlords seeking to recover possession on the termination of a lease; moreover, an interpretation of § 47a-26b (d) that would allow the court to render judgment of possession without a hearing in these circumstances would yield an absurd result because the class of defendants who timely filed an answer and sought a hearing before defaulting on use and occupancy payments would be treated the same as those who defaulted and never filed an answer at all.

         David A. Slossberg, with whom was Meaghan M. Ehrhard, for the appellants (named defendant et al.).

         Stephen G. Walko, with whom, on the brief, was Andrea C. Sisca, for the appellee (plaintiff).

         Gruendel, Sheldon and Schuman, Js.

          OPINION

Page 1215

         [162 Conn.App. 335] SCHUMAN, J.

         The issue on appeal is whether the trial court erred when it rendered a judgment of possession for the plaintiff, 136 Field Point Holding Company, LLC,[1] in a summary process action without first conducting the hearing prescribed by General Statutes § 47a-26b (d). We conclude that the court erred and, accordingly, reverse the judgment of the court.

         The defendants Alexander Razinski and Tanya Razinski appeal from the judgment of possession. On appeal, they claim that the judgment was ultra vires because rendering it violated § 47a-26b (d).[2] The

Page 1216

plaintiff responds that the self-executing provision of § 47a-26b (d) did not apply at the phase of the proceedings in [162 Conn.App. 336] which the court rendered a judgment of possession. The plaintiff also claims that this court lacks subject matter jurisdiction over the appeal because it is moot. We agree with the defendants.

         The record reveals the following relevant facts and procedural history. The plaintiff and defendants entered into a contractual relationship governed by a document called the " Master Agreement." The Master Agreement states that " [the plaintiff] shall lease [136 Field Point Circle, Greenwich (property)] to the [defendants] pursuant to the terms and conditions of this Agreement and the residential lease agreement between the [plaintiff] and the [defendants] . . . ." The Master Agreement also states that " [the plaintiff] hereby grants to the [defendants] a call option . . . to purchase the Property . . . ." The Master Agreement also provides specific details regarding the defendants' lease of the property, including a requirement that the plaintiff give the defendants sixty days written notice as to whether the plaintiff would grant a six month extension of the lease. Finally, the Master Agreement provides that " [t]his agreement and the transaction contemplated hereby shall be governed by and construed in accordance with the domestic laws of the state of New York . . . . [A]ny and all proceedings arising out of or relating to this Agreement and the transactions contemplated hereby shall be commenced and prosecuted exclusively in . . . the state of New York . . . ." (Emphasis omitted.)

         Following the Master Agreement, the parties entered into a written lease for the property in question, a luxury home in Greenwich. The lease provides that it is " Exhibit B to a certain Master Agreement" between the parties and that " [a]ll terms, conditions and provisions contained in the Master Agreement and relating to the lease of the dwelling are hereby incorporated into this lease by reference and made a part hereof. If any terms, [162 Conn.App. 337] conditions or provisions in this lease are in conflict with or inconsistent with the terms, conditions or provisions of the Master Agreement, the Master Agreement shall supersede and control." (Emphasis omitted.)

         The lease also sets forth the lease term of approximately one year, subject to the optional six month extension. The original lease term is specified as running from May, 2012 to June 30, 2013. The lease sets rent at $25,000 per month but allows the tenants to defer up to $20,000 of that sum each month, to be paid in full at the end of the lease term.

         The lease expired by its terms on June 30, 2013. The plaintiff did not initially grant the six month extension contemplated by the Master Agreement, although it ultimately did so, thus extending the lease until November 17, 2013. On July 3, 2013, the defendants commenced an action (New York action) in the Supreme Court of New York, County of New York (New York court). In the New York action, the defendants sought numerous forms of relief, including an injunction to prevent the plaintiff from evicting them from the property, a decree of specific performance requiring the plaintiff to extend the term ...


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