Opinion
No. DBD CV 09-4010514S
August 31, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108 OBJECTION MOTION FOR SUMMARY JUDGMENT #113
FACTS PROCEDURAL HISTORY
On May 18, 2009, the plaintiff, Casagmo Condominium Association — Phase II, Inc., filed the present action against the defendant, Gianina Venegas. The plaintiff alleges the following facts. In May 2008, the defendant entered into a contract to purchase a condominium unit located at 104 Olcott Way, Ridgefield, Connecticut, known as Casagmo. Before taking title, the defendant and the defendant's counsel at the time inquired about the bylaws, at which time they were notified that domestic animals may not be raised, bred, or kept in any unit at Casagmo. On July 18, 2008, the defendant acquired title and upon receiving title accepted membership to Casagmo Condominium Association. Despite having knowledge of the bylaws, the defendant immediately began keeping a dog in her condominium unit. On August 6, 2008, the defendant appeared before the plaintiff's board of directors to be heard on the violation of the bylaws. After the hearing, a fine of $100 a month, increasing by $25 each month thereafter, was imposed. The defendant has not paid the fine and has continued to keep a dog in her condominium unit.
The plaintiff seeks a permanent injunction prohibiting the defendant from keeping a domesticated animal in her unit, attorneys fees, costs and money damages. Attached to the complaint are a Casagmo resale certificate for 104 Olcott Way; a letter dated July 14, 2008 from Attorney Terbrusch to Attorney O'Brien pertaining to the plaintiff's bylaws; a letter dated July 18, 2010 to Attorney Flynn with notification regarding a hearing on an exception to the bylaws; a copy of amendment #2 of Casagmo's bylaws, dated May 16, 1984; and a letter from the property manager to the defendant, dated September 9, 2008, notifying the defendant of the fine.
On July 17, 2009, the defendant was defaulted for failure to plead. Prior to a hearing on damages, the self-represented defendant filed an answer on January 27, 2010, and a motion to open judgment on February 1, 2010. In the answer, the defendant admitted paragraphs one through eight of the plaintiff's complaint, while not answering the remaining paragraphs, nine through eighteen.
Included with the answer was a special defense in which the defendant pleaded the following: The defendant suffers from mental illness and is prescribed animal assistance. In August 2008, she went before the board of directors explaining her illness and need for her dog. After several weeks of deliberation, the board notified the defendant that she would be fined $100 a month with the fine increasing by $25 each month thereafter. The defendant then prepared an additional packet detailing the specifics of the defendant's illness along with letters from neighbors stating that the dog was not a nuisance or threat. This request for an exception was ignored.
On February 4, 2010, the court, Maronich, J granted the defendant's motion to open judgment. The plaintiff subsequently answered the special defense on March 31, 2010, and on April 9, 2010, filed the current motion for summary judgment (#108). In their memorandum of law, the plaintiff argues that there is no genuine issue as to any material fact. An affidavit of Casagmo's property manager, a copy of the defendant's answer and special defenses, and a copy of Casagmo's bylaws, dated May 16, 1984, are attached to the memorandum.
On May 3, 2010, the plaintiff's motion for summary judgment was heard at short calendar. After the hearing, the defendant retained counsel, and on June 21, 2010, the defendant's counsel filed an appearance. On August 3, 2010, the defendant filed an objection (#113) to the plaintiff's motion for summary judgment along with several documents, including: a personal affidavit, multiple letters from Ruthe Feilbert-Willis (a clinical social worker) directed to the plaintiff, a National Service Animal Registry service animal certification, a signed letter from the defendant's neighbors and several photographs. Due to the delay in the defendant's filing, the plaintiff objects to the defendant's opposition memorandum and accompanying exhibits.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks removed.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
As an initial matter, the plaintiff has objected to the defendant's opposition memorandum and exhibits since they were not filed until August 3, 2010, more than three months after the short calendar hearing on the motion. Practice Book 17-45 provides in relevant part: "Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence." "[I]t is the established policy of the Connecticut courts to be solicitotous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., 80 Conn.App. 15, 19 n. 2, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003).
In Martinez v. Zovich, 87 Conn.App. 766, 769 n. 3, 867 A.2d 149 (2005), the defendant objected to the plaintiff's opposition memorandum, but the court determined that "because the defendant did not demonstrate that the plaintiffs' delay in filing their memorandum of law in opposition to the motion for summary judgment was prejudicial to his defense of the matter, the court chose not to grant the defendant's motion on that procedural ground." "Subsequent courts have relied on Martinez to allow them discretion whether to consider late filed papers in opposition to a motion for summary judgment where no clear prejudice has been shown." Sakon v. Manager, Superior Court, judicial district of Hartford, Docket No. CV 04 4004816 (May 16, 2007, Scholl, J.).
The plaintiff has not shown that they would suffer from any real prejudice due to the late filing. Although there was significant time between the hearing on the motion for summary judgment and the defendant's filings, the defendant was pro se and only recently obtained counsel. The court will construe the rules of practice in favor of the pro se defendant and will, therefore, consider the defendant's opposition memorandum and accompanying exhibits in determining the motion.
In the present case, the plaintiff has alleged that the defendant has violated Casagmo's bylaws by keeping a dog in her condominium and failing to pay the fine. The plaintiff argues that the defendant "either directly admits the material allegations in the plaintiff's complaint or simply does not respond to them at all" leaving no issues of material fact. The plaintiff further argues that the dog is not a service animal and is not exempted under the bylaws prohibiting domestic animals from Casagmo. The defendant has alleged a special defense that under the Fair Housing Amendments Act of 1988 she should be exempt from the bylaws concerning her dog.
General Statutes § 47-244(c)(1) provides in relevant part: "Unless otherwise permitted by the declaration or this chapter, an association may adopt rules and regulations that affect the use or occupancy of units that may be used for residential purposes only to: (A) Prevent any use of a unit which violates the declaration; (B) Regulate any occupancy of a unit which violates the declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners . . ." Article VI, Section 11(e) of the Casagmo bylaws states: "No fowl or poultry of any kind shall be raised, bred or kept in any Unit or in the Common Elements. No domestic animals may be raised, bred or kept in any Unit. Notwithstanding the foregoing, up to two (2) domestic animals may be raised or kept in each of the Units set forth in schedule A annexed hereto and made a part thereof."
Practice Book § 10-19 provides: "Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief." The burden rests with the plaintiff to bring to the court's attention an allegedly implied admission. See Mamudovski v. BIC Corp., 78 Conn.App. 715, 720, 829 A.2d 47 (2003). The defendant has admitted paragraphs one through eight and failed to respond to paragraphs nine through eighteen. The plaintiff argues that the defendant's failure to plead the remaining paragraphs serves as an implied admission to those facts. The plaintiff is correct and paragraphs nine through eighteen are deemed admitted.
In Stamford Landing Condominium Association, Inc. v. Lerman, 109 Conn.App. 261, 951 A.2d 642 (2008), the Appellate Court held that the plaintiff's rule banning all pets was proper under § 47-244(c)(1). The trial court "concluded that `rules concerning pets fall squarely within the powers of a condominium association' and specifically noted § 47-244(c)(1)(B)." In that case there was an issue of whether the defendant was provided with notice of the fines pursuant to the statute. Here, the defendant has not contested notice. Prior to becoming an owner and member of the condominium association, the defendant was provided with notice of the bylaw prohibition on domestic animals. After the defendant moved into Casagmo, she was notified that she was in violation of the bylaws. The defendant, pursuant to § 47-244(a)(11), was then provided with a hearing before Casagmo's board of directors. As a result, no issue of fact exists as to the defendant's violation of the bylaws.
Section 47-244(c)(1) in relevant part provides: "Unless otherwise permitted by the declaration or this chapter, an association may adopt rules and regulations that affect the use or occupancy of units that may be used for residential purposes only to: (A) Prevent any use of a unit which violates the declaration; (B) Regulate any occupancy of a unit which violates the declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners."
Section § 47-244(a)(11) provides: "Except as provided in subsection (b) of this section, and subject to the provisions of the declaration, the association, even if unincorporated: May impose charges or interest or both for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules and regulations of the association."
Nonetheless, having established a prima facie case, the only question is whether the defendant's special defense creates any genuine issue of material fact. Courts have held that invalid or legally insufficient special defenses do not raise issues of material fact. See Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (upholding the decision of the trial court that the "special defense . . . did not attack the making, validity or enforcement of the note and mortgage and thus raised no issue of material fact that would warrant a trial"); New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 9, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001) (upholding summary judgment for the plaintiff because the defendant's special defenses did not relate to the making, validity or enforcement of the note). If the defendant's special defenses are invalid, legally insufficient, or not supported by the facts, they do not create a genuine issue of material fact and summary judgment should be granted.
The defendant pleaded that she was informed of a $100 "pet fee" or "pet fine" for keeping a dog, at which time she explained to a representative of the plaintiff that she suffers from chronic mental illness. She was afforded a hearing before the Board of Directors and, ultimately, denied a request for an exemption under the Fair Housing Amendments Act of 1988. The defendant argues she provided additional documentation, see attached exhibits, but received no response and only bills for the bylaws violation.
The Fair Housing Amendments Act of 1988 (FHAA) applies to any recipient of federal funds. 42 U.S.C. § 3603. It defines a handicapped person as one who has "a physical or mental impairment which substantially limits one or more of such person's life activities," or who has a "record of having such an impairment." 42 U.S.C. § 3602(h). The FHAA prohibits various types of discrimination including "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604.
42 U.S.C. § 3604(f)(3) provides in relevant part: "For purposes of this subsection, discrimination includes-(A) a refusal to permit at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted. (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."
The court in Woodside Village v. Hertzmark, Superior Court, judicial district of New Britain, Docket No. SPH 9204 6592 (June 22, 1993, Holzberg, J.), was faced with the issue of "whether federal and state laws outlawing discrimination in housing prohibit the eviction of a mentally disabled defendant from his federally subsidized apartment because of his failure to comply with the plaintiff's pet policy." The court, in quoting federal case law, stated that the "principal question is whether reasonable accommodations will permit the handicapped to realize the principal benefits of the program." (Internal quotation marks omitted.) Id. "CFR Sec. 85-53 further notes that where reasonable accommodation does not overcome the effects of a person's handicap, or where reasonable accommodation causes undue hardship, it is not required." (Internal quotation marks omitted.) Id. The court went on to state that the "need for the accommodation must arise out of the person's handicap and not be a function of personal preference or convenience." Id.
In Woodside Village, the defendant had a dog that provided him companionship for his schizophrenia. The condominium association received several complaints about the dog's odor and the defendant's failure to clean up after the dog. The association sought to remove the dog because of the defendant's failure to comply with the pet policy. The court held that "[t]he record in [the] case demonstrated that the plaintiff has made reasonable efforts to accommodate the defendant and his dog."
In the present case, the defendant's special defense is legally recognizable and raises several issues of material fact. First, there is an issue of whether the plaintiff receives federal funding and would, therefore, be mandated to abide by the FHAA. There is also an issue as to whether the defendant qualifies as a handicapped individual pursuant to the FHAA, especially considering the definition includes a mental impairment. The plaintiff claims that the dog is not a service animal, however, the defendant's affidavit and the social workers' letters create an issue of fact as to whether the defendant is handicapped. Lastly, there is an issue as to whether the plaintiff made reasonable efforts to accommodate the defendant. In Woodside Village, the court was able to determine what steps the condominium association had taken to reasonably accommodate the defendant. Here, the defendant testifies that she sent in multiple letters from her social worker that indicated she needed a dog for her mental illness. As a result, there is an issue of fact as to what efforts the plaintiff has made to accommodate the defendant.
CONCLUSION
For the foregoing reasons, the court sustains the defendant's objection to the motion for summary judgment and denies the plaintiff's motion for summary judgment.