Opinion
No. NBSP-046589
October 13, 2006
MEMORANDUM OF DECISION
I STATEMENT OF THE CASE
This is a summary process action. As to Cheri Nappi, the complaint alleges the following ground for eviction: where one originally had the right or privilege to occupy such premises but such right or privilege has terminated. As to Michael Vaverchak, the complaint alleges the following ground for eviction: when such premises, or any part thereof, is occupied by one who never had nor now has the right or privilege to occupy such premises.
II FINDINGS OF FACTS
The following facts and procedural history are relevant to the disposition of this case.
On July 25, 2006, the plaintiff served the defendants with a notice to quit with a quit date of July 30, 2006. The defendants were served with the Writ, Summons and Complaint on August 2, 2006. The case was first scheduled for trial on August 24, 2006. The case was then scheduled for trial on September 14, 2006. On that date, the defendants requested a continuance, and the case was continued for trial, over the plaintiff's objection, to October 5, 2006. On October 5, 2006, the defendants failed to appear. Based on the defendants' failure to appear, the plaintiff requested that a default judgment enter. Earlier in the day, the clerk's office had received a faxed letter from a doctor's office. The court treated the faxed letter as a request for a continuance, even though no written motion for continuance, as required by the Practice Book, was ever filed. After due consideration, the court denied the defendants' request for a continuance. See Transcript, 10/5/06. The court then granted the plaintiffs request for a default judgment. On October 6, 2006, Michael Vaverchak filed a motion to open judgment. On October 11, 2006, Cheri Nappi filed an application for stay of execution. A hearing was held on October 12, 2006.
III DISCUSSION A Motion to Open Judgment
The defendant, Michael Vaverchak, has moved to open the judgment entered on October 5, 2006.
A motion to open judgment should be granted "if, but only if, the court, in its sound discretion, found that the defendant had shown "reasonable cause" under 52-212 of the General Statutes. See also Practice Book 286 [now 17-43]. The granting of relief under this statute, when its provisions are properly complied with, lies within the sound discretion of the trial court. But the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause for relief under the statute. . . . Such relief ordinarily should not be granted if the failure to comply with an order of the court resulted from the moving party's own negligence." Jaquith v. Revson, 159 Conn. 427, 431-432, 270 A.2d 559 (1970). General Statutes § 52-212 provides:
(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.
(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.
Practice Book Sec. 17-43 (a) provides in relevant part:
Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment or decree until the decision upon such written motion.
The illness of a party is not necessarily a legitimate ground for a motion to open. In Jaquith, the Supreme Court held: "While the defendant's motion to open the judgment of nonsuit recites her history of illness and cause for seclusion as the reason for her failing to comply with the court order, it failed to set forth facts showing reasonable cause for not complying with the court order or that she was prevented by mistake, accident or other reasonable cause from complying. Although the defendant alleged facts which she asserted were reasonable grounds for not complying with the court order, the facts as properly found by the court clearly show that she was not prevented from complying with the order as a result of mistake, accident or other reasonable cause but, on the contrary, that her failure to comply was due to her own negligence. Thus, the court was correct in its ruling and did not abuse its discretion in denying the motion to open the judgment of nonsuit." (Citations omitted.) Jaquith v. Revson, supra, 159 Conn. 432. In Jacobson v. Robington, 139 Conn. 532, 537, 95 A.2d 66, 68 (1953), the Supreme Court found that the while the defendant was ill, her physical condition did not prevent her from entering an appearance.
Here, the defendant has failed to provide sufficient proof that he has a good faith defense to the underlying eviction action. In addition, the defendant has failed to offer convincing evidence that he was prevented by mistake, accident or other reasonable cause from appearing in court on October 5, 2006. No evidence was presented that he failed to appear because he had an illness. He alleges only that he had to take care of the other defendant. Although he claims that he is Cheri Nappi's caregiver, no evidence was offered that he has any legal responsibility for her. He is apparently her uncle. The facts clearly show that he was not prevented from appearing in court to defend himself as a result of mistake, accident or other reasonable cause but, on the contrary, that his failure to comply was due to his own negligence. The orderly administration of justice requires that the relief requested be denied.
Accordingly, the court finds that the defendant has failed to meet the requirements under General Statutes Sec. 52-212 and Practice Book Sec. 17-43.
B Application for Stay of Execution
The defendant, Cheri Nappi, has filed an application for a stay of execution.
Section 47a-39 sets for the requirements an applicant for a stay of execution must satisfy. The statute provides:
Upon the hearing on such application in the Superior Court the judgment of the trial court shall stand, but upon such hearing if it appears that the premises, judgment for possession or occupancy of which has been rendered, are used for dwelling purposes and are not excluded by the provisions of section 47a-36; that the applicant cannot secure suitable premises for himself and his family elsewhere within the city or town or in a city or town adjacent thereto in a neighborhood reasonably comparable to that in which the premises occupied by him are situated; that he has used due diligence and reasonable effort to secure other premises; that his application is made in good faith, and that he will abide by and comply with such terms and provisions as the court may prescribe, the court may grant a stay of execution for a period or for periods in the aggregate not exceeding six months from the date of the judgment in the summary process action upon such conditions and terms as appear fair and equitable, except that such stay of execution shall not exceed three months in the aggregate if the reason for the judgment against the defendant was nonpayment of rent; provided in the case of an applicant who is a resident in a mobile manufactured home park and owns his own unit and has received notice pursuant to subparagraph (E) of subdivision (1) of subsection (b) of section 21-80 or an applicant who is a conversion tenant, as defined in section 47-283, or who at the time of conversion was residing in a dwelling unit in a building or on property which has been declared a conversion condominium, at the end of such six-month period the court may extend such stay of execution under the same or different conditions and terms for an additional period not exceeding nine months taking into consideration the age of the applicant, the size of the applicant's family, the length of time of such applicant's tenancy and the availability of suitable alternative housing. Such extended stay may be reviewed every two months. The court shall consider all the circumstances of the case, the equities involved and whether any undue hardship would result to either party. Such conditions and terms may include the requirement that the applicant shall pay to the plaintiff in the summary process action such amount in such installments from time to time and in such manner as the court may direct, for the use and occupancy of the premises for such period of the stay, at the rate to which he was liable as rent for the month immediately prior to the expiration of his term or tenancy, if any, and any assessment for current common expenses not already included in the rent as provided in subsection (b) of section 47-76, if any, or such sum as may be determined by the court to be reasonable for such use and occupancy. Such payment shall also include all rent unpaid prior to the period of such stay. § 47a-39
In this case, the defendant has failed to provide sufficient proof to satisfy the statutory requirements for a stay of execution. The defendant has not offered sufficient proof of due diligence and reasonable efforts to secure suitable, comparable housing. She has not demonstrated that the application is made in good faith, and that she would abide by and comply with such terms and provisions as the court may prescribe. Rather, she seems to want to delay as long as possible the resolution of the case. Based on the circumstances, the plaintiff would suffer undue hardship if the application for stay of execution is granted.
Having considered the law and equity, the court finds that the defendant has failed to meet the requirements under General Statutes § 47a-39.
IV CONCLUSION AND ORDER
For the above-stated reasons, the motion to open judgment and the application for stay of execution are both denied.