Opinion
No. NNI CV06-4006668
February 6, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
This memorandum of decision addresses the Motion to Dismiss filed by the defendant, Enrique Beltran (tenant) on November 21, 2006 (#102). The tenant is the subject of a summary process action brought against him by the plaintiff, the Housing Authority of the City of Meriden (landlord) through a complaint dated October 11, 2006. This memorandum also addresses the landlord's Objection to the Motion to Dismiss dated November 30, 2006. For the reasons stated below, the court finds this matter in favor of the landlord. Accordingly, the motion to dismiss (#102) is hereby DENIED, and the objection thereto is hereby SUSTAINED.
I. HISTORY OF THE PROCEEDINGS
The landlord instituted proceedings to evict the tenant from the premises he occupied at 55 Willow Street, Apartment 1107-North, Meriden Connecticut. The complaint alleges, inter alia, that the landlord and tenant had entered into a lease agreement with regard to these premises; that the tenant occupied the premises pursuant to the lease agreement and continues to occupy the premises; and that the defendant failed to pay the rent due for the month of August 2006. The complaint presents two grounds for eviction: the first count sounds in nonpayment of rent; in the second count sounds in "serious nuisance." In ¶ 7 of both the first and second counts, the complaint specifically alleges that on or about September 8, 2006, the landlord caused a written notice to quit to be served upon the defendant, informing him of his obligation to leave the premises on or before September 22, 2006. Each ¶ 7 further alleges that: "[t]he notice also stated the acts or omissions constituting the breach" of the tenant's lease entitling him to occupy the premises. That notice to quit, which is appended to the complaint informed the tenant that he was expected to quit possession "for one (or more) of the following reason(s): (a) nonpayment of rent for August 2006; and (b) inappropriate sexual conduct resulting in serious nuisance." The acts constituting that alleged "serious nuisance" are specifically defined in ¶ 6 of the second count of the complaint as follows: "a) propositioning an employee of the Plaintiff; b) propositioning other residents of the Plaintiff; c) making inappropriate sexual comments to other residents; c) gesturing inappropriately in the presence of a minor; and/or d) masturbating in the presence of a minor."
At the short calendar hearing on December 1, 2006, the tenant requested the court to refrain from taking judicial notice of any pending criminal charges that may have been brought against him as the result of the conduct alleged in either the complaint and\or the notice to quit. In reaching its decision in this matter, the court has honored that request.
The tenant's motion to dismiss, which is directed solely at the second count of the complaint, asserts that "the Notice to Quit did not provide the defendant with the specific information required to comply with the statutory requirements for an action based on serious nuisance." Memorandum in Support of Defendant's Motion to Dismiss, dated November 21, 2006 (Memorandum in Support). Objecting, the landlord counters that the notice to quit was sufficient, at law, to provide the tenant with information relating to the nuisance-conduct that forms the basis for the second count of the eviction complaint.
II. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE
"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). "[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.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "[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).
Here, the tenant seeks to dismiss the second count of the complaint asserting that the notice to quit provided insufficient notice of the nature of his offensive conduct, in violation of the statutory standards for an eviction based on "serious nuisance." Memorandum in Support. The tenant vigorously claims that the landlord's summary process action is governed by General Statutes § 47a-15, which requires, among other things, a written pretermination notice to be delivered sufficiently timely to allow him 15 days within which he could remedy any violation. The tenant does not contest that the notice to quit was served upon him in a timely manner. However he emphatically argues that his alleged misconduct, as described in the notice to quit, lacks the detail necessary to be categorized as that constituting a "serious nuisance" within the meaning of § 47a-15. Therefore, the tenant argues, the court lacks jurisdiction because the landlord failed to serve him with a written pre-termination notice providing a detailed specification of the acts or omissions constituting the breach of the terms of the rental agreement. The tenant implores the court to find that in the absence of sufficient specificity in the notice to quit, the circumstances of this case deprive the court of subject matter jurisdiction.
Section 47a-15 provides, in pertinent part: "Prior to the commencement of a summary process action, . . . 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 . . . 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." (Emphasis added.)
Despite the sincerity of his argument, the tenant's motion must fail for two reasons. First at oral argument, the tenant with candor acknowledged that there is no appellate law in this state establishing whether or not a notice to quit possession which asserts "inappropriate sexual conduct resulting in serious nuisance" is insufficient as a matter of law. To support his argument, therefore, the tenant has attempted to rely upon various trial court decisions which ostensibly require that the notice to quit identify the nature and extent of any nuisance-related misconduct with a high degree of precision. Carefully read, however, the logic and reasoning used by those other trial courts merely requires that, in anticipation of eviction, the tenant be given some information to assist him or her in identifying the offensive conduct at issue beyond mere reference to a "nuisance" or even to a "serious nuisance." By referencing "inappropriate sexual conduct," the landlord's notice to quit meets the defendant's proposed standard.
Moreover, even when using the tenant's proposed measure, the court is obligated to consider the allegations contained in the second count of the complaint in the context of the appended notice to quit and in the light most favorable to the landlord-pleader. Cox v. Aiken, supra, 278 Conn. 211. A fair and objective review of the notice to quit establishes that the landlord did not leave the tenant without appropriate information concerning the conduct which led to the decision to evict him. Rather then merely advising the tenant that he had become involved in causing or permitting any "serious nuisance" to exist, the landlord specifically advised him that the eviction was due to his "inappropriate sexual conduct" which had resulted in the nuisance alleged. While the tenant would have the court find it that the notice to quit was summary and conclusory in nature, the document's use of the phrase "inappropriate sexual conduct" was sufficient to put the tenant unclear notice of the basis for is obligation to cede possession of the unit in question.
Second, the tenant's proposes a strained application of § 47a-15. That legislation, by its terms, provides an opportunity for a tenant to remedy or correct the condition's constituting the breach "if the breach is remediable by repairs or payment of damages," with the remedy expected to occur within a 15 day period following issuance of the pretermination notice. Housing Authority v. Martin, 95 Conn.App. 802, 813, 898 A.2d 245 (2006). In support of his motion, the tenant has provided no basis, in law or in fact, upon which the court could conclude that the "inappropriate sexual conduct" in which he had allegedly engaged could in any way be remedied within that time frame. Nor has the tenant provided any basis, in law or in fact, upon which the Court could reasonably conclude that he was able or willing to pay damages and correction of his breach. Section 47a-15 "clearly and unambiguously anticipates a situation in which he violation cannot be cured by the tenant." Housing Authority v. Martin, supra, 95 Conn.App. 813. Such circumstances are clearly supported by the allegations presented to the notice to quit. In the present case, then, the court is constrained to conclude that § 47a-15 fails to provide the tenant the succor he seeks.
As the landlord has argued, any reasonable and logical review of the terms "inappropriate sexual conduct," as contained in the notice to quit, would lead to the ineluctable determination that eviction was sought because this tenant had engaged in behavior that fell well within the application of § 47a-15(C). See Objection. Here, the statutory reference to "conduct which presents an immediate and serious danger to the safety of other tenants or the landlord" clearly and unambiguously encompasses the tenant's "inappropriate sexual conduct. `While the [tenant] is correct when he states that is the statutory requirement of § 47a-15 must be construed strictly,' Jefferson Garden Associates v. Green, 202 Conn. 128, 144, 520 A.2d 173 (1987), `such strict construction does not, however, require ritualistic compliance with statutory or regulatory mandates.'" (External citation omitted.) Objection. As the landlord has provided fair and timely due notice of the reason for eviction, he has met his burden of proving the court's subject matter jurisdiction in this case. Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430 n. 12.
III. CONCLUSION
On its face, the record in this case supports the landlord's claim of subject matter jurisdiction. As the tenant's arguments have failed to defeat this claim, his motion to dismiss must fail.
WHEREFORE, the court finds hereby DENIES the motion to dismiss (#102), and SUSTAINS the objection thereto.