Opinion
HFHCV166001993
07-29-2016
421 Washington Street, LLC v. Elizabeth Ramos
August 1, 2016, Filed
UNPUBLISHED OPINION
RULING RE MOTION TO DISMISS AND OBJECTION
John F. Mulcahy, Judge
The defendant has moved to dismiss this summary process action on three grounds: 1. The termination date show on the notice to quit is the same date as the return of service; 2. Ambiguity in the stated reason for the termination; and 3. The complaint specifies an incorrect address for the demised premises.
A motion to dismiss " properly attacks the jurisdiction of the court asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . [the motion] tests . . . whether on the face of the record, the court is without jurisdiction . . ." Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); Housing Authority v. DeRoche, 112 Conn.App. 355, 362, 962 A.2d 904 (2009).
1. The notice to quit is dated June 1, 2016. The quit date shown therein is June 6, 2016. The return indicates service by an indifferent person of the notice to quit on June 6, 2016. On July 8, 2016, the indifferent person, at the request of plaintiff's counsel, furnished an amended return of service which states: " Then and by virtue hereof, and by direction of the Plaintiff's attorney on June 1, 2016, I left a verified true and attested copy of the attached NOTICE TO QUIT POSSESSION, at the usual place of abode, of the within named defendant . . . This Amended Return of Service is being filed to correct the Scrivener's error regarding the date of service contained in my original Return of Service."
A proper notice to quit is a jurisdictional necessity. Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175 (1989). Under General Statutes Sec. 47a-23, the lessor must give notice to the lessee to quit possession at least three days prior to the specified quit date. The defendant contends that the defect was not remedied by the amended return filed on July 8, 2016, subsequent to the quit date, and therefore the court is deprived of subject matter jurisdiction. The plaintiff maintains the incorrect date of service in the return was a scrivener's error which was corrected by the filing of the amended return and that there was no resulting prejudice to the defendant.
In Bayer v. Showmotion, 292 Conn. 381, 389, 973 A.2d 1229 (2009), the court discussed " circumstantial errors." In Bayer, an obvious scrivener's error regarding a quit date on a notice to quit qualified as a mere circumstantial error and, under the circumstances, did not deprive the court of subject matter jurisdiction. The court in Bayer stated: " In determining whether a defect is merely circumstantial and not substantive, courts have considered whether the defendant had actual notice of the institution of the action and whether the defendant was in any way misled to its prejudice." Id., 391.
In Bayer, the defendant was served with a notice to quit on March 21, 2006, with a quit date of March 25, 200 5. Defendant, in moving to dismiss, argued that the notice failed to comply with the Sec. 47a-23(a) timeline because Bayer had not served it at least three days prior to the date specified in the notice, thereby precluding the court from assuming jurisdiction over the complaint. It was held that the trial court properly denied the motion to dismiss under the totality of the circumstances of that case.
Here, the error was not in the notice to quit, but in the return of service of that jurisdictionally crucial pleading. While the error is troubling, it is my view, on the facts, that it qualifies as a scrivener's error, as opposed to a substantive defect having jurisdictional consequences. The amended return corrects the error, it was filed at counsel's direction to rectify the record of service, and there is no evidence to place in doubt the veracity of the amendment. 'The defendant had notice of the eviction proceeding, notice of the quit date, and there is no evidence of prejudice.
It is true that the indifferent person did not testify; however, the notice to quit is dated June 1, 2016, and there is nothing to suggest that service on that date is falsified in the amended return.
It is concluded that the error in the initial return of service of the notice to quit, corrected by the amended return, does not divest the court of subject matter jurisdiction.
2. The notice to quit states the following reason for the eviction: " TERMINATION OF LEASE DUE TO NONPAYMENT OF RENT." It is the defendant's contention that the plaintiff has improperly conflated two Sec. 47a-23 eviction grounds, lapse of time and nonpayment of rent. The statute reads: " . . . when a rental agreement or lease of such property . . . terminates for any of the following reasons: (A) By lapse of time . . . (D) nonpayment of rent within the grace period provided for residential property . . ." Defendant acknowledges that a month-to-month tenancy can be terminated for lapse of time or based on a failure to pay rent. She argues, " . . . the Notice fails to specify lapse of time or nonpayment of rent. Instead, the Notice presents a confusing notice of lease termination." Defendant's Brief, p. 2-3. Plaintiff maintains that the language used in the notice to quit " almost verbatim tracks the statute" and is not ambiguous.
Defendant occupies the premises on an oral month-to-month rental agreement
The summary process procedure, of which the Notice to Quit is an integral part, is a creature of statute and the summary nature of the remedy it provides demands that it be strictly followed and narrowly construed. Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-01, 96 A.2d 217 (1959); Bongiovanni v. Reardon, SPH 8201-13501 WH (H-313), (March 8, 1982). The reason for the eviction should be set forth in the Notice to Quit with specificity; a tenant is entitled to prior notice of what the landlord is claiming with a view toward preparing a defense and determining what stay is available. Ruocco v. McKay, SPNH 8202-971 NB (NH-40), (March 11, 1982).
While the defendant's point is well taken, it is the court's view that the term " due to nonpayment of rent" renders it sufficiently clear that the eviction is premised on the nonpayment ground under Sec. 47a-23(a). Accordingly, the reason as stated in the notice to quit does not negate the court's subject matter jurisdiction.
3. The summons shows the address of the demised property as: " 7 Brownel Ave., APT B-6, Hartford, CT." The complaint incorrectly has the location of the premises as: " 51-53 Bedford Street, Apt. 51A, Hartford, CT." The parties agree that the mistaken address in the complaint is amendable and that there has been filed a timely amendment. Practice Book Section 10-59.
The Brownel Ave. address is the location shown in the notice to quit.
The objection to the motion to dismiss is sustained.
The motion to dismiss is denied.