Opinion
CV156029204S
11-09-2015
Simeon Yisrael v. Jacek Dziekan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
PETER EMMET WIESE, JUDGE.
I. PROCEDURAL HISTORY
On May 18, 2015, the plaintiff, Simeon Yisrael, filed a complaint against the defendant, Jacek Dziekan, under General Statutes § 47a-14h. The plaintiff alleges the following facts. The plaintiff was a tenant in an apartment owned by the defendant under an oral agreement. The plaintiff lived in the apartment as a tenant from March 14, 2010 to May 2013. In May 2013, the plaintiff was forced to move from the premises because of alleged hazardous conditions.
General Statutes § 47a-14h(a) provides, in relevant part: " Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 . . . may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section . . ."
On June 25, 2015, the defendant filed a motion to strike the plaintiff's complaint for failure to state a claim upon which relief may be granted. On July 6, 2015, the plaintiff filed an objection to the motion to strike and a supporting memorandum of law. During oral arguments on September 14, 2015, both parties agreed to treat the motion to strike as a motion to dismiss.
While not raised by the parties, the court notes that the plaintiff originally filed a complaint against the defendant in Housing Court, but the case was dismissed for improper service of process. Yisrael v. Dziekan, Superior Court, judicial district of New Britain, Docket No. CV-14-4035686-S (February 9, 2015, Abrams, J.).
II. DISCUSSION
A. Applicable Law
The court is permitted to treat a motion to strike as a motion to dismiss. See Huckel v. Old Saybrook, Superior Court, judicial district of Middlesex, Docket No. CV-04-4001166-S (January 26, 2005, Silbert, J.) (" [s]ubject matter jurisdiction, however, is well recognized as an issue that cannot be waived simply by having moved past the motion to dismiss in the order of pleadings outlined in the November 9, 2015 Practice Book, and the court is therefore compelled to address the claim, even if improperly raised as a motion to strike"). " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . .., to state a claim upon which relief can be granted . . . A motion to dismiss, on the other hand, challenges the court's jurisdiction to hear a case . . . Where a party moves to strike on jurisdictional grounds, as in this case, the court will treat the motion to strike as a motion to dismiss." (Citations omitted; footnote omitted.) Fortier v. Casey, Superior Court, judicial district of New Britain, Docket No. CV-97-0484192-S (September 30, 1999, Wollenberg, J.) (25 Conn. L. Rptr. 307). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
In his motion to strike, the defendant argues that the plaintiff is no longer a tenant under the definition of General Statutes § 47a-1(l); therefore, relief under § 47a-14h is no longer available to the plaintiff. The plaintiff argues, in his memorandum of opposition, that the plaintiff has standing because he has been classically and statutorily aggrieved. The plaintiff further claims that his cause of action is premised on constructive eviction. Lastly, the plaintiff alleges that the defendant's failure to make certain repairs constituted a failure to provide essential services under General Statutes § 47a-13.
General Statutes § 47a-1(l) defines " tenant" as " the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law."
General Statutes § 47a-13(a) provides, in relevant part: " If the landlord is required to supply heat, running water, hot water, electricity, gas or other essential service, and if the landlord fails to supply such essential service and the failure is not caused by conditions beyond the landlord's control, the tenant may give notice to the landlord specifying the breach and may elect to . . ." ---------
B. Analysis
Tenant Status
General Statutes § 47a-1(l) defines " tenant" as the " person entitled under a rental agreement to occupy a dwelling . . ." The plaintiff in this matter is not a tenant because he is no longer entitled to occupy the premise under a rental agreement. The plaintiff's complaint states that he moved out of the premise in May 2013. When this action was filed in May 2015, approximately two years later, the plaintiff is no longer a tenant under § 47a-1(l), thus, the plaintiff no longer has standing under his alleged cause of action under § 47a-14h. See Groton Townhouse Apts. v. Covington, 38 Conn.Supp. 370, 372, 448 A.2d 221 (App. Sess. 1982) (" [we] conclude that the defendants are not 'tenants' as that term is defined in § 47a-1(l), because they are not 'entitled under a rental agreement to occupy a dwelling unit to the exclusion of others . . .'"). Because the plaintiff's complaint alleges a cause of action under § 47a-14h, and the plaintiff is not a tenant under § 47a-1(l), the court does not have subject matter jurisdiction; therefore, the motion to strike, treated as a motion to dismiss, is granted.
Notification Requirement
In the complaint, the plaintiff states that he " brings this action in accordance with General Statutes § 47a-14h for defendant's failure to comply with General Statutes § 47a-7 . . ." " Section 47a-14h provides a cause of action for a tenant to enforce her rights as tenant and to compel a landlord to perform her legal duties. It permits a tenant who has complied with certain jurisdictional requirements to bring an action to compel her landlord to comply with the requirements of General Statutes § 47a-7." (Citation omitted). Wilson v. Jefferson, 98 Conn.App. 147, 158 n.8, 908 A.2d 13 (2006). The court further explains that " [w]e note, however, that according to the act's legislative history, § 47a-14h is procedural in nature and is designed to balance the competing interests of tenants and landlords by both providing a simple method by which an individual tenant may enforce housing code violations and also protecting a landlord's interest in collecting rent by requiring a tenant who initiates such an action to deposit rent with the clerk of the court during the action's pendency." Id., 159 n.9.
General Statutes § 47a-14h(b) further lists the tenant's requirements in bringing an action to enforce the landlord's responsibilities. Sec. 47a-14h(b) provides, in relevant part: " The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code . . ." (Emphasis added.) The Supreme Court in Dugan v. Milledge, 196 Conn. 591, 595, 494 A.2d 1203 (1985), has held that the requirement to make a complaint to the municipal agency responsible for the enforcement of the housing code in § 47a-14h(b) is a " condition precedent to the maintenance of the action . . ." " The requirement of notification to the housing code enforcement agency is not directory but mandatory. Compliance with this essential condition was a requisite for the court's jurisdiction." Id. The Supreme Court found no error when the trial court dismissed the action for lack of subject matter jurisdiction because the plaintiff's amended complaint failed to allege timely notice to the correct agency as required under § 47a-14h.
Furthermore, courts have narrowly interpreted § 47a-14h. " General Statutes § 47a-14h, is especially narrow. It prevents landlords from evicting tenants. It prevents the landlord from receiving rent. It requires the landlord to make repairs. No money damages are authorized by statute other than the return of rent paid into court." Henesy v. Fleiss, Superior Court, judicial district of Stamford-Norwalk, Docket No. HCNO-9512027 (April 25, 1996, Tierney, J.). See also Rosati v. Bogue, Superior Court, judicial district of New Haven, Docket No. CVNH8207134-S (August 23, 1983, Harrigan, J.) (court found no authority implicit in § 47a-7 that would allow the tenant to charge the landlord for repair costs).
In the present matter, the plaintiff's complaint was filed on May 18, 2015. The complaint alleges that " [b]etween April 2010 and May 2013, numerous complaints about the condition of the premises were made to the New Britain Department of Public Health/Building/Housing Division by various tenants of the premises." Our Supreme Court has made it clear that compliance with the essential condition of timely notification by the tenant to the municipal agency is a requisite for the court's jurisdiction. Here, the plaintiff's complaint does not sufficiently allege that the plaintiff made a timely complaint to the municipal agency concerning the premises, as required under § 47a-14h(b). Because the plaintiff's complaint alleges a cause of action under § 47a-14h, and the plaintiff has failed to allege a timely notification to the correct agency, the court does not have subject matter jurisdiction; therefore, the motion to strike, treated as a motion to dismiss, is granted.
III.
CONCLUSION
The court grants the defendant's motion to strike.
SO ORDERED.