Dominick BOCCANFUSO et al.
Nader DAGHOGHI et al.
February 11, 2019
from the Superior Court, Judicial District of
Stamford-Norwalk, Housing Session, Rodriguez, J.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
E. Cederbaum, with whom was Ryan Driscoll, Milford, for the
B. Woods, Norwalk, for the appellees (plaintiffs).
Prescott and Pellegrino, Js.
Conn.App. 140] This summary process action involves a lease
of commercial premises located at 936-940 Post Road East in
Westport (property). The defendants, Nader Daghoghi (Nader),
Sassoon Daghoghi (Sassoon) and 940 Post Road East, LLC, doing
business as Savoy Rug Gallery (defendant LLC), appeal from a
judgment of possession rendered in favor of the plaintiffs,
Dominick Boccanfuso (Dominick), Crescienzo Boccanfuso
(Crescienzo), and Boccanfuso Bros., Inc. (plaintiff
corporation). The defendants claim that the trial court (1)
applied an incorrect legal standard in determining that they
failed to prove their special defense of equitable
nonforfeiture; (2) erred in finding that the plaintiffs were
unaware of environmental contamination at the property until
after July 1, 2014; (3) abused its discretion in finding that
the defendants had failed to prove their special defenses of
unjust enrichment and violation of the implied covenant of
good faith and fair dealing; and (4) abused its discretion by
not granting the defendants a continuance so that a witness
could testify. We affirm the judgment of the trial court.
following facts, as stipulated to by the parties or as found
by the court in its original decision or subsequent
articulations, and procedural history are relevant to this
property was owned by the plaintiff corporation, and, at all
times relevant to this litigation, Dominick was a
shareholder, director and officer of the plaintiff
corporation. Since at least 1970 and through the date of
Dominicks retirement at the end of 2013, the property was
used as an automobile repair facility. In or about 1989, the
plaintiffs installed a 2000 gallon gasoline underground
storage tank under the front parking lot of the property.
Sometime thereafter, they also installed a 330 gallon waste
oil underground storage tank in the rear of the property.
Both underground storage tanks [193 Conn.App. 141] were
removed in 2013 for reuse elsewhere, but the plaintiffs
failed to follow proper procedures and protocols for the
Dominick received a letter from Absolute Tank Testing, Inc.
(Absolute), dated October 31, 2011, advising him that soil
samples taken from the area around the perimeter of the 2000
gallon gasoline underground storage tank contained
"detectable concentrations of [Extractable Total
Petroleum Hydrocarbons] 540 parts per million," and that
Absolute had notified the Department of Energy and
Environmental Protection (department). (Internal quotation
March, 2013, Dominicks nephew, Giuseppe Boccanfuso
(Giuseppe), who was not licensed to remove underground
storage tanks, removed the 2000 gallon gasoline underground
storage tank. In March or April, 2014, Giuseppe removed the
300 gallon waste oil underground storage tank. The department
was not notified of the removal of either of the tanks.
Additionally, no test of the soil surrounding the waste oil
underground storage tank was conducted.
November 22, 2013, the parties entered into a lease of the
property. The five-year lease, with an option of extending
the term for five additional five-year terms, provided that
the defendants were to convert the property from an
automobile repair facility to spaces in which they would
operate their two businesses, the Savoy Rug Gallery and a
Subway sandwich shop. The defendants intended to use a
portion of the space to sell handmade oriental rugs and the
remainder to house their Subway franchise.
H. Girouard, Sr., was the leasing agent for the property and
property manager for the Boccanfuso family. Girouard
negotiated the terms and conditions of the lease and drafted
it on behalf of the plaintiffs. The monthly base rent for
the property was $16,338.
Conn.App. 142] Prior to the signing of the lease, on October
29, 2013, Girouard, on behalf of Klein New
England, sent a letter to the defendants
regarding the renovation of the retail space. In this letter,
Girouard offered to provide the defendants consulting and
design services for the demolition and renovation of the
property. Two of Klein New Englands undertakings were to
obtain the building permits and certificates of occupancy for
the retail space. The defendants paid Klein New England the
$22,500 fee set forth in Girouards letter.
July 1, 2014, over seven months after the lease was signed,
the department, after finding evidence of environmental
contamination, issued an enforcement order directed to the
plaintiff corporation. The department later commenced a civil
action against the plaintiff corporation in the Superior
Court for the Judicial District of Hartford at Hartford,
alleging a violation of the enforcement order. On August 15,
2016, the court, Hon. Susan A. Peck, judge trial
referee, rendered a judgment upon the stipulation of the
parties to that action.
Paragraph 33 of the lease provides in pertinent part:
"Lessor will be responsible for any environmental issues
which may arise with the [d]emised [p]remises." The
plaintiffs addressed the contamination issues at their
expense, and the property has been remediated in accordance
with the stipulation between the plaintiffs and department.
June 11, 2014, the defendants obtained a building permit to
renovate a portion of the property into the retail rug
gallery, and a certificate of occupancy for that renovated
space was issued on February 26, 2015.
Conn.App. 143] At the direction of the plaintiffs, on June
27, 2014, Girouard informed the defendants by letter that the
rent commencement date pursuant to paragraph 10 of the lease
would be July 1, 2014, and to commence payment of all water
and electric charges. In the letter, Girouard also informed
the defendants that the plaintiffs had instructed him to
handle all lease and building matters exclusively and that
the plaintiffs did not want to be called or visited by the
defendants about lease or building matters.
August 1, 2014, Girouard, on behalf of Klein New England,
sent a letter to the defendants regarding the renovation of
the Subway space. The defendants paid Klein New England a
$9000 consultation fee regarding the renovation of this
September 15, 2014, the defendants obtained a building permit
for the renovation of the Subway space and a certificate of
occupancy was issued for that renovated space on June 5,
defendants did not pay rent for the month of December, 2014,
or make any other rent payments thereafter. On January 7,
2015, the plaintiffs served the defendants with a notice to
quit for nonpayment of rent when due for commercial property,
thereby terminating [193 Conn.App. 144] the lease. The
defendants remained in possession of the property beyond the
date specified in the notice to quit. On January 17, 2015,
the plaintiffs commenced this summary process action.
their answer to the complaint, the defendants raised six
special defenses. All but the first special defense, which
alleged a lack of standing on the part of the plaintiff
corporation, are the subjects of this appeal.
their second special defense, the defendants alleged that the
plaintiffs had violated paragraphs 14 and 33 of the lease by
failing to remediate environmental contamination they caused
and were aware of prior to the execution of the
lease. In their third special defense, the
defendants alleged that the plaintiffs, by failing to
remediate the environmental contamination, had violated the
implied covenant of good faith and fair dealing.
defendants fourth special defense alleged unjust enrichment
as a result of the failure of the plaintiffs property
manager, Girouard, to properly oversee the extensive
renovations to the property pursuant to "an
agreement" he had with the defendants. The
defendants asserted that Girouard failed to obtain a
certificate of occupancy until fourteen months after the
lease was signed, which caused the defendants to pay basic
[193 Conn.App. 145] and additional rent to the plaintiffs,
unjustly enriching them, for a period when the defendants
were unable to physically occupy any portion of the leased
their fifth special defense, the defendants alleged that,
despite the failure of the plaintiffs property manager and
agent, Girouard, to properly oversee the progress of their
renovations, the plaintiffs required them to pay basic and
additional rent. The plaintiffs demand of these payments
prior to the defendants ability to physically occupy any
portion of the property, they allege, was a violation of the
implied covenant of good faith and fair dealing owed to them
by the plaintiffs.
sixth special defense alleged that the plaintiffs claim for
possession of the leased premises was barred by the equitable
doctrine against forfeitures. This special defense, however,
failed to allege or incorporate any facts. In the defendants
posttrial brief, the defendants argued to the court that
their justifiable reasons for withholding of rent were due to
(1) being unaware of long existent on-site contamination of
the property until the fall of 2014, nine months after the
lease was signed, and their concern that the Subway would not
be permitted to open due to the contamination, which had not
yet been remediated in breach of the plaintiffs obligations
under paragraph 33 of the lease; (2) the plaintiffs failure
to extend the rent abatement period despite Girouards
failure to obtain expediently certificates of occupancy for
either the retail or food service uses; and (3) counsels
advice to hold the rent in escrow.
their reply, the plaintiffs essentially denied the
allegations contained in the defendants special defenses.
trial was held before the court over three days: February 2,
2016, May 19, 2016, and April 4, 2017. At the courts
request, during trial on February 2, 2016, counsel for the
parties acknowledged that the court, in deciding the issues,
could rely on a joint stipulation [193 Conn.App. ...