Housing Authority v. Curtis

Full title: HOUSING AUTHORITY OF THE CITY OF DANBURY v. CYNTHIA CURTIS

Court: Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Mar 27, 2006

2006 Ct. Sup. 6340 (Conn. Super. Ct. 2006)

41 CLR 129

Opinion

No. SP-05-12308

March 27, 2006

MEMORANDUM OF DECISION

RICHARD M. MARANO, JUDGE.

FACTS

On May 1, 1999, the plaintiff, Housing Authority of the City of Danbury, entered into a written lease agreement with the defendant, Cynthia Curtis, for the use and occupancy of premises located in Danbury, Connecticut. The lease contained, inter alia, a "zero tolerance, one strike you're out" policy. The policy, which was set forth in paragraph 13(b)(2)(e) of the lease, provides: "Landlord has adopted the zero tolerance, One Strike You're Out Policy regarding drug related and other criminal activity. Tenant is duly warned and acknowledges that an arrest or conviction under Connecticut General Statutes is not necessary to constitute a violation of the provisions set forth in Section 13.b(1) or (2) of this Lease Agreement. One violation of the above shall constitute a serious nuisance."

On or about January 8, 2005, the defendant was arrested for risk of injury to a minor and delivery of alcohol and tobacco to a minor. The plaintiff subsequently informed the defendant in a pre-termination notice dated January 24, 2005, that her arrest constituted a violation of the policy, and that the lease would terminate on February 25, 2005. The pre-termination notice also explained that the defendant had rights to review the documentation in her tenant file and to a personal conference with her property manager. The pre-termination notice did not inform the defendant, however, of any rights available under § 47a-15 to remedy the violation within fifteen days.

On March 10, 2005, a personal conference was held and the decision to terminate the defendant's lease was affirmed. The plaintiff notified the defendant of the decision by a letter dated April 13, 2005. On May 6, 2005, the defendant received a notice to quit, which ordered her to vacate the premises on or before May 11, 2005. Despite the notice to quit, the defendant remained on the premises beyond the specified date and the plaintiff commenced this summary process action.

On June 17, 2005, the plaintiff filed a complaint against the defendant alleging that she breached the "one strike you're out" policy of the lease. The plaintiff subsequently filed an amended two-count complaint on July 26, 2005. In count one, the plaintiff alleged material non-compliance with the terms of the lease due to the defendant's breach of the "one strike you're out" policy. In count two, the plaintiff alleged serious nuisance, pursuant to General Statutes § 47a-15.¹

1 General Statutes § 47a-15 provides in relevant part: "For the purposes of this section, "serious nuisance" means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out, (B) substantial and wilful destruction of part of the dwelling unit or premises, (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises or allowing the premises to be used for prostitution or the illegal sale of drugs or, in the case of a housing authority, using any area within fifteen hundred feet of any housing authority property in which the tenant resides for the illegal sale of drugs."

On August 19, 2005, the defendant filed motions to dismiss and to strike both counts of the amended complaint, accompanied by memoranda in support as required by Practice Book §§ 10-31(a) and 10-42(a), respectively. On September 26, 2005, the plaintiff filed an objection to the motion to dismiss, accompanied by a memorandum in opposition pursuant to Practice Book § 10-31(b). On November 4, 2005, the plaintiff filed an objection to the motion to strike, accompanied by a memorandum in opposition pursuant to Practice Book § 10-42(b).

I MOTION TO DISMISS DISCUSSION

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it." Bridgeport v. Debek, 210 Conn. 175, 180, 554 A.2d 728 (1989). The Superior Court has subject matter jurisdiction over a summary process action pursuant to § 47a-23a, but "[t]he failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action." Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).

The defendant filed a motion to dismiss count one of the amended complaint on the ground that the plaintiff failed to serve a valid Kapa notice² under § 47a-15. The defendant argues that the pre-termination notice did not offer a fifteen-day cure period as required under § 47a-15 and Housing Authority v. Harris, 225 Conn. 600, 625 A.2d 816 (1993).

2 See Kapa Associates v. Flores, 35 Conn.Sup. 274, 408 A.2d 22 (1979).

The plaintiff argues that under § 47a-15, a pre-termination notice must only indicate that the lease will not terminate for at least fifteen days. The plaintiff asserts that the law does not additionally require landlords to notify tenants of their right to cure their violations within fifteen days. The plaintiff alternatively argues, however, that even if landlords are required to notify tenants of their right to cure, such notice is only required when the violation is in fact curable. The plaintiff contends that the violation of a "one strike you're out" policy is irreparable and, therefore, it would be "absurd" to require notice of the right to cure under these facts.

The court must, therefore, first decide the threshold matter of whether the defendant's act is conduct that can be cured for purposes of § 47a-15. The court must determine if a tenant can "repair" a claimed criminal act that violates a "one strike you're out" policy by stopping the offending behavior.

Section 47a-15 provides in relevant part: "Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-11, if there is a material noncompliance with section 47a-11 which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate; or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive."

In support of the argument that the defendant's conduct is not curable, the plaintiff relies on Norwich Housing Authority v. Pauley, Superior Court, judicial district of New London at Norwich, Docket No. CV 214933 (May 10, 1991, Austin, J.) ( 6 C.S.C.R. 594) ( 4 Conn. L. Rptr. 79). In Pauley, the court determined that the defendant's lease violation could not be corrected because the conduct "can[not] be remedied by repair by the tenant or payment of damages." Id. The court further determined that "[a]pplication of common sense leads to the conclusion that the 21-day cure period³ applies to damages involving the physical condition of the premises." Id. Other than Pauley, however, no court has determined that a tenant's conduct is not capable of being cured,⁴ nor has a court so narrowly limited a tenant's right to remedy strictly to repair of the physical condition of the premises or the payment of damages.

3 The twenty-one day cure period has been amended to fifteen days.

4 Although one Superior Court judge noted that "the literal language of § 47a-15 does not seem to require notice of a right to cure violations of regulations that are not curable . . ." the court ultimately concluded that the defendant's lease violation was, in fact, curable. See Housing Authority of Torrington v. Hoye, Superior Court, judicial district of Litchfield at Bantam, Docket No. CV 18 7286 (March 8, 2000, Frazzini, J.).

In Casa Verde Sur v. Laureano, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. SP 85 0528460 (September 20, 1985, Goldstein, J.), the defendant engaged in "unlawful activities" in violation of her lease agreement. Despite the violation, however, the plaintiff sent the defendant a pre-termination notice that included her right to "repair" the damage pursuant to § 47a-15. In its determination that the defendant had remedied the violation upon the expiration of the cure period, the court explained that "[t]here was no evidence that following the § 47a-15 notice that the lessee continued the offensive behavior, or that substantially the same act for which the notice was given had recurr[ed]; there must be a repeat offense to allow eviction." Id.

In the present case, the defendant allegedly committed an unlawful act in violation of her lease with the plaintiff. Similar to the tenant in Laureano, the defendant's act was curable by discontinuing the offensive behavior. Furthermore, it is undisputed that the defendant has in fact refrained from engaging in similar activity. Therefore, despite the lease's "one strike you're out" policy and the nature of the violation, the defendant's conduct was curable for purposes of § 47a-15.

Next, the court must determine whether the plaintiff gave the defendant proper pre-termination notice under § 47a-15. Therefore, the court must decide whether the plaintiff's failure to inform the defendant of her right to cure the lease violation is procedurally defective, despite having provided both notice of the breach and a lease termination date in excess of fifteen days.

"Reading [§ 47a-15] as a whole indicates that notice should be given for all violations except those specifically excluded. If the tenant can remedy the violation by repair or by paying damages, and does so within [fifteen] days, the rental agreement continues. If the violation is not or cannot be remedied, the landlord may institute a summary process action thirty days after the tenant received the notice. This interpretation will further the legislative purpose, recognized by the Appellate Court, of giving the tenant one opportunity to eliminate the cause of the nuisance." (Citation omitted; internal quotation marks omitted.) Housing Authority v. Harris, 225 Conn. 600, 606, 625 A.2d 816 (1993).

The Appellate Court in its earlier decision in Housing Authority v. Harris, 28 Conn.App. 684, 691, 611 A.2d 934 (1992), aff'd, 225 Conn. 600, 625 A.2d 816 (1993), discussed, inter alia, the issue of providing proper notice under § 47a-15 when the defendant's violation is not statutorily exempted. The plaintiff asserts that the Appellate Court did not make clear that it was reading into § 47a-15 an additional notice requirement of the right to cure. The plaintiff's argument is inaccurate. The Appellate Court clearly divided the landlord's obligations to provide notice under § 47a-15 into two parts, notice of the violation and of the right to cure. "[The court] conclude[d] that the defendant's conduct did not constitute a serious nuisance as defined by General Statutes § 47a-15 and, thus, the plaintiff was not relieved of its obligation to notify the defendant, in its notice to quit, of the acts or omissions forming the basis of the termination and that she was entitled to twenty-one days in which to rectify the violation." (Emphasis added.) Housing Authority v. Harris, supra, 691. Moreover, requiring notice of the right to cure in the absence of a statutorily exempted violation is consistent with Superior Court decisions postdating the Supreme Court's resolution of Harris. ⁵

5 See Housing Authority of New Haven v. Young, Superior Court, judicial district of New Haven, Docket No. SP 94 0940795 (April 28, 1995, Jones, J.) ( 14 Conn. L. Rptr. 447); Nathan Hale Apartments v. Mortenson, Superior Court, judicial district of Hartford, Docket No. SP 96 0724513 (November 26, 1996, Beach, J.) ( 18 Conn. L. Rptr. 330); East Hartford Housing Authority v. Lundy, Superior Court, judicial district of Hartford-New Britain, Docket No. SP 87718 (December 3, 1996, Beach, J); Housing Authority of Torrington v. Hoye, Superior Court, judicial district of Litchfield at Bantam, Docket No. CV 18 7286 (March 8, 2000, Frazzini, J.); RAC Family LLC v. Wallace, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 12569 (December 14, 2001, Clifford, J.) ( 31 Conn. L. Rptr. 128).

In the present case, the plaintiff provided a pre-termination notice on January 24, 2005, that explained that the lease will terminate on February 25, 2005. The plaintiff did not explain, however, that the defendant could preserve her tenancy by correcting the behavior that caused the breach of the lease. Accordingly, the motion to dismiss count one is granted.

The defendant also filed a motion to dismiss counts one and two of the amended complaint on the separate ground that the plaintiff, a federally subsidized public housing authority operating a state moderate rental program, failed to give proper lease termination notice as required under 24 C.F.R. § 966.4. That section of the federal regulations provides in relevant part: "The notice of lease termination to the tenant shall state specific grounds for termination, and shall inform the tenant of the tenant's right to make such reply as the tenant may wish." 24 C.F.R. § 966.4 (2005).

The defendant argues that the pre-termination notice failed to comply with the federal regulation by not literally stating "make such reply as the tenant may wish." This omission, the defendant contends, could have undermined the defendant's entitlement to be informed of her rights. The plaintiff concedes that the pre-termination notice did not precisely contain the language urged by the defendant. The plaintiff argues, however, that the substance of the notice, which explained that the defendant has a right to a grievance hearing, adequately informed her of her right to make a reply. The plaintiff asserts that the defendant's argument exalts form over substance and exemplifies the type of hypertechnical attack that has been rejected by the Connecticut Supreme Court.

In Jefferson Garden Associates v. Greene, 202 Conn. 128, 520 A.2d 173 (1987), a base upon which both parties rely, the court explained that "not every deviation from the strict requirements of either statutes or regulations warrants dismissal of an action for summary process. When good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnical dissection of the wording of the notices that he has sent." Id., 145. In Jefferson Garden Associates, the court rejected the defendant's argument that the pre-termination notice failed to advise her of her right to present a defense in judicial eviction proceedings. The court explained that the "minor deviation from the language of the federal regulation [could not] have prejudiced the defendant's rights in any way." Id., 148.

In the present case, the pre-termination notice explained to the defendant: "In accordance with the grievance procedure, you have the right to review all of the documentation in your tenant file and have a conference with your Property Manager as to the reason for the termination of your lease. You must contact your Property Manager, Estela Francis, in writing, before February 25, 2005 to make an appointment for a personal conference. If you have not contacted your Property Manager by this date, the eviction process will begin."

The notice sufficiently complied with 24 C.F.R. § 966.4 notwithstanding the minor deviation. Any confusion with respect to the defendant's right to make a reply is negated by the statement "you have the right to . . . have a conference with your Property Manager as to the reason for the termination of your lease." Moreover, a personal conference was held on March 10, 2005, which belies the argument that the notice " could have undermined the defendant's entitlement to be informed of her rights." Accordingly, the defendant's motion to dismiss count two is denied.

II MOTION TO STRIKE

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

The defendant filed a motion to strike counts one and two of the amended complaint pursuant to § 10-39 of the Practice Book.⁶ The defendant moves to strike count two on the following grounds: 1) the variance between the notice to quit and the complaint is a fatal defect; 2) the plaintiff failed to allege an act that can be considered a serious nuisance; and 3) the definition of serious nuisance in the lease is illegal and unenforceable under General Statutes § 47a-4.

6 The court, in granting the defendant's motion to dismiss count one, is only left to consider the motion to strike count two.

The defendant first argues that the variance between the reference to material non-compliance in the notice to quit and the allegation of serious nuisance in the amended complaint is a fatal defect. The plaintiff counters that the variance between the notice to quit and the amended complaint did not result in prejudice to the defendant because the substance of the pre-termination letter adequately informed the defendant that her conduct amounted to a serious nuisance.⁷

7 The letter explained that "[t]he specific event which has caused the violation, is your recent arrest on or about January 8, 2005 for risk of injury to a minor and delivery of alcohol and tobacco to a minor."

The notice to quit enables a defendant "to prepare a defense, to determine what stay may be available, and to ascertain what appeal procedure is appropriate." Ruocco v. McKay, Superior Court, judicial district of New Haven, Docket No. SP 82 02971 (March 11, 1982, Foti, J.). "In order to demonstrate its compliance with the notices required for a proper termination, a landlord must show that the notices given to the tenant apprised her of the information a tenant needs to protect herself against premature, discriminatory or arbitrary eviction." Jefferson Gardens Associates v. Greene, supra, 202 Conn. 143.

Judges of the Superior Court have examined the effect of an alleged variance between the notice to quit and the complaint. Most judges have held that the complaint may not substantially vary from the notice to quit. See Kapa Associates v. Flores, 35 Conn.Sup. 274, 277, 408 A.2d 22 (1979).⁸ The plaintiff argues that in Tower Associates v. LaFrance, Superior Court, judicial district of Waterbury, Docket No. SP 89 0407205 (December 8, 1989, Demayo, J.) ( 1 Conn. L. Rptr. 86), the court determined that the variance between the notice to quit and the complaint was inconsequential despite the landlord's failure to specifically mention serious nuisance in the notice to quit. The court explained that "the violations were described in detail in the Notice to Quit. Thus, the defendant had notice of the reasons for the plaintiff's action and the failure to label these acts a serious nuisance does not change their character." Id.

8 See also Rahavi v. Kaplan, Superior Court, judicial district of Stamford at Norwalk, Docket No. SP 86 1005208 (December 31, 1986, West, J.); Housing Authority of Bridgeport v. Rogers, Superior Court, judicial district of Fairfield, Docket No. SP 91 0920758 (March 2, 1992, Leheny J.) ( 6 Conn. L. Rptr. 174); Golden Realty v. Society for Savings, Superior Court, judicial district of Stamford at Norwalk, Docket No. SP 91 1011839 (April 20, 1992, Leheny, J.); Gazzillo v. Roane, Superior Court, judicial district of Middlesex, Docket No. CV 13214 (December 27, 2002, Dyer, J.).

However, Tower Associates is distinguishable from the present case. In the present case, the notice provided that the arrest formed the basis of the lease termination. Without a more definite reference to serious nuisance, however, the notice does not adequately enable the defendant to prepare a defense against an allegation of serious nuisance. Moreover, the tenant in Tower Associates committed acts on the leased premises that presented "a serious safety hazard to [herself] and the other elderly tenants in the building." Id. As compared to the tenant in Tower Associates, the defendant in the present case would be less likely to believe that her act presented "an immediate and serious danger to the safety of other tenants." Specifically, the plaintiff did not allege that the defendant committed any unlawful act on or even near the leased premises. Thus, the variance between the notice and the complaint constitutes a fatal defect. Accordingly, the motion to strike count two of the amended complaint is granted.

For the foregoing reasons, the court grants the motion to dismiss count one of the amended complaint, but denies the motion to dismiss count two. Further, the court grants the motion to strike count two of the amended complaint.