Opinion
No. NBSP-045287
July 14, 2006
MEMORANDUM OF DECISION SUMMARY PROCESS ACTION
I STATEMENT OF CASE
This is a summary process action based on nonpayment of rent. The plaintiff, hereinafter ("Landlord"), seeks a judgment of immediate possession. The defendant, hereinafter ("Tenant"), raises special defenses of retaliatory action and condition of the premises. The Tenant also alleges a counterclaim for damages. The case was tried to the Court on March 9, 2006, May 18, 2006, May 26, 2006.
FACTS
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavolick v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 763 A.2d 199 (2001).
"[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . The trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what — all, none, or some — of a witness' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996).
The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
"While a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint. Id." Gulycz v. Stop Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087 (1992).
The standard of proof in summary process actions, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). The Court finds the following facts by a fair preponderance of the evidence.
The phrase a "fair preponderance of the evidence" "simply means that evidence which outweighs that which is offered to oppose it . . ." Black's Law Dictionary (5th Ed. 1983).
The Landlord is the owner of the premises at 29 Glen Street, Apartment 4, New Britain, Connecticut. He purchased the property in May 2004. The Tenant was already living in the apartment having moved in sometime in May 2003. The monthly rent was initially $575 with no utilities. On July 20, 2004, the parties entered into a written lease agreement for the period of July 1, 2004 through June 31, 2005. The Tenant agreed to pay monthly rent of $650 with utilities. The lease contains a hold-over provision which allowed the Tenant to occupy the premises on a monthly basis after the lease expired. The Tenant paid rent through October 2005.
When the Landlord went to collect the November 2005 rent, the Landlord testified that the Tenant said she did not have the money to pay the rent. The Landlord claimed that the Tenant did not tell him about problems with the apartment until after he told the tenant he was going to take her to court for nonpayment. During her tenancy, he never received any notification from the city of New Britain that there were any violations regarding the apartment. On December 8, 2005, the Landlord caused a Notice to Quit Possession to be served with a vacate date of December 13, 2005. The Tenant still remains in possession of the premises.
The Tenant testified that the apartment had numerous problems, including, but not limited to, no heat, water leaks, plumbing issues, old windows, and roach infestation. The Tenant contacted the Landlord or his son to complain about problems with the apartment. They lived in New York and would promise to come on the weekend. However, they would not always show up as scheduled. When they did come, the Tenant complained that the repairs were sometimes inadequate. According to the Tenant, the Landlord only fumigated the apartment once. She also made complaints to her father who worked for the Landlord, as a building superintendent, for a period of time.
She claimed that she contacted the New Britain Health Department to complain about the apartment in the Summer 2005. She was told to contact the building department. She also called the health department when she had no heat and was told to go to a shelter. She testified that at some point the Landlord's son told her that he would fix the apartment and asked her to stop calling the health department. However, Sergio Lupa, the supervisor sanitarian for the New Britain Health Department, testified that there are no records on file regarding the premises in question. If a complaint was made to the health department, a record would have been generated.
In October 2005, the Tenant contacted the Landlord regarding water leaking from the kitchen ceiling. The leak would occur when the tenants in the upstairs apartment used the washer or sink. She also complained about the condition of the bathroom. The Tenant testified that she stopped paying rent in November 2005 because the Landlord did not want to fix anything, and she got tired of it.
Marilyn Ayala, a former roommate of the Tenant, testified regarding the condition of the premises. She lived in the apartment from January 2005 to July 2005. When she moved in, there were a number of problems with the apartment. The apartment was heavily infested with roaches. There was a mold problem in the bathroom, and the back door would not close all the way. On one occasion in the winter, the apartment had no heat. During the Summer 2005, there was a backup of human waste coming out of the bathtub and toilet. They were unable to use the bathroom for several days. The Landlord fixed the problem after a second occurrence. Only a few months after moving out of the Tenant's apartment, Ayala considered moving into another apartment in the building.
Nick Gagnon, the Tenant's former boyfriend, testified regarding the condition of the premises. He lived in the apartment from July 2005 to December 2005. During this period, Gagnon talked to the Landlord and his son regarding problems with the apartment. They would promise to come on the weekend to make repairs, but they would not always show up as scheduled.
He claimed that he called the health department regarding the condition of the apartment. He was told that he had to contact the building department which he did. When he called the building department, he got the runaround. After the Landlord repaired the tiles in the living room, Gagnon said he stopped pursuing the complaint.
Gagnon testified that the apartment was infested with roaches. He did not think that the Landlord made sufficient efforts to remedy the roach problem. He saw the Tenant's father fumigate the apartment once. But he never witnessed any professional exterminator fumigating the apartment or building.
In the Fall 2005 the Tenant's father started painting the living room but did not finish the job. The Tenant's father was eventually fired from his job as the superintendent. Later, the Landlord's son gave Gagnon $100 to finish painting the living room and the hallway.
In November 2005, Gagnon agreed to do some minor maintenance work for the Landlord. Under the agreement, Gagnon would take out the trash, sweep up the front, and pick up the garbage. In return, the Landlord would deduct $150 from the rent. Although Gagnon talked with the Landlord and his son about painting the kitchen and the bathroom, he never agreed to do any other work besides the minor maintenance work.
Since there was no longer a building superintendent, Gagnon started receiving calls from the other tenants about problems with their apartments. He ended up doing other work in the building that he had not agreed to, including resetting the breakers when the lights went out. Gagnon tried to explain to the other tenants that he was not the super; he was only taking out the trash and doing a little cleaning. When he received complaints from the other tenants, he would call the Landlord's son who would promise to come on Saturday. After receiving numerous calls from the other tenants, at all hours of the day, Gagnon and the Tenant shut off their home phone.
Gagnon testified that they were unable to move because they did not have the money to put down for a security deposit. He testified that he heard the Landlord's son say that the Tenant should stop calling the health department, and he would come over and take care of the problems with the apartment.
He moved out of the apartment in December 2005, after the Tenant got back together with her baby's father. Since moving out, Gagnon has been back to the apartment. He observed that the Landlord had made some repairs, but there were still problems. Although the bathroom was painted, the mold and mildew bled through the paint.
The Landlord testified regarding the repairs made to the apartment. The Landlord admitted that there was an infestation problem. The Landlord testified that he used a professional exterminator but could not remember the name of the company. He also fumigated the apartment himself. The Tenant's father also sprayed the apartment. The Landlord testified that he did everything he could to control the roach problem. After the sewage backed up, the Landlord tried to take care of the problem immediately. When he received a no heat complaint, he called the boiler people who came over and fixed the problem.
The Landlord testified regarding his arrangement with Gagnon. In November 2005, the Landlord made arrangements with Gagnon to do some maintenance work in the building. According to the Landlord, Gagnon did the super's job for a month. Gagnon was to take out the garbage and do some painting in the Tenant's apartment. In return, the Landlord would deduct $150 from the rent. He did not have an agreement with Gagnon to do any plumbing or to deal with the roach problem. The Landlord testified that he had discussions with Gagnon about painting the kitchen and doing some work in the bathroom. But they never finalized the arrangements, and Gagnon did no work in the kitchen and bathroom. The Landlord admitted that Gagnon complained to the Landlord regarding the washer machine overflowing and leaking into the kitchen. After several weeks, Gagnon stopped taking out the trash and seemed to disappear.
The repairs to the kitchen and the bathroom had not yet been made when the Landlord came to court in late January 2006. On February 14, 2006, the Landlord unsuccessfully attempted to gain access to the apartment to make the repairs. By February 22, 2006, the Landlord had plastered and painted the kitchen and the bathroom, and installed new tiles in the washing machine room.
The Tenant was not totally satisfied with the repairs. Although the kitchen and bathroom had been painted, the mold returned in the bathroom. In addition, the Landlord had still not replaced the old windows or sufficiently addressed the infestation problem.
On December 8, 2005, the Tenant took her children to the hospital because they were sick. The Tenant's father was taking down a wall and doing sheetrock/plaster work in the living room. The Tenant blamed the lack of heat, due to the renovations, for causing her child's medical problems.
III DISCUSSION A Landlord's Case
In a summary process action based on nonpayment of rent, the landlord must prove, by a fair preponderance of the evidence, all the elements of the case. The essential elements are: (1) On or about a certain date, the landlord and the tenant entered into an oral or written, lease/rental agreement for a weekly/monthly/yearly term for use and occupancy of a certain premises; (2) The tenant agreed to pay an agreed-upon rent by a certain date; (3) The tenant took possession of the premises pursuant to the lease; (4) The tenant failed to pay the rent due under the lease by a certain date; (5) The landlord caused a proper Notice to Quit Possession to be served on the tenant to vacate the premises on or before a certain termination date; and (6) Although the time given in the Notice to Quit Possession of the premises has passed, the tenant remains in possession of the premises. See § 47a-23(a)(1)(D).Failure of the landlord to establish any of the necessary elements, by a fair preponderance of the evidence, results in judgment for the tenant. Gulycz v. Stop Shop Cos., supra, 29 Conn.App. 523.
After weighing all the evidence and assessing the credibility of the witnesses, the court makes the following findings. The Tenant was obligated to pay monthly rent of $650. The Tenant failed to pay the rent due for November 2005. The notice to quit served on December 8, 2005, is proper and in conformity with the statute. The Tenant failed to vacate the premises after the quit date and remains in possession of the premises. Based on the evidence presented, the court finds that the Landlord has proved, by a fair preponderance of the evidence, all the elements of the case.
B Tenant's Defenses (1) Retaliatory Action pursuant to § 47a-20 As her First Special Defense, the Tenant alleges retaliatory action pursuant to § 47a-20. More specifically, the Tenant alleges the following: (1) During the course of the Tenant's occupancy of the premises, the Landlord unilaterally attempted to raise the rent; (2) At said time, the Landlord permitted the premises to fall into a state of disrepair, and the premises were no longer habitable; (3) As a result of the disrepair of the premises, the Tenant complained to the New Britain Health Department with respect to said conditions, including, but not limited to, lack of proper heat, infestation, water leaks, and improper windows; (4) This action is, therefore, retaliatory as prohibited by Section 47a-20 of the General Statutes. The Tenant did not allege retaliatory action pursuant to § 47a-33. General Statutes Sec. 47a-20, entitled "Retaliatory action by landlord prohibited," provides in relevant part:
A landlord shall not maintain an action or proceeding against a tenant to recover possession of a dwelling unit, demand an increase in rent from the tenant, or decrease the services to which the tenant has been entitled within six months after: (1) The tenant has in good faith attempted to remedy by any lawful means, including contacting officials of the state or of any town, city or borough or public agency or filing a complaint with a fair rent commission, any condition constituting a violation of any provisions of chapter 368o, or of chapter 412, or of any other state statute or regulation, or of the housing and health ordinances of the municipality wherein the premises which are the subject of the complaint lie; (2) any municipal agency or official has filed a notice, complaint or order regarding such a violation; (3) the tenant has in good faith requested the landlord to make repairs; (4) the tenant has in good faith instituted an action under subsections (a) to (i), inclusive, of section 47a-14h; or (5) the tenant has organized or become a member of a tenants' union.
However, General Statutes Sec. 47a-20a, entitled "Actions deemed not retaliatory," provides in relevant part:
(a) Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit if: (1) The tenant is using the dwelling unit for an illegal purpose or for a purpose which is in violation of the rental agreement or for nonpayment of rent; (2) the landlord seeks in good faith to recover possession of the dwelling unit for immediate use as his own abode; (3) the condition complained of was caused by the wilful actions of the tenant or another person in his household or a person on the premises with his consent; or (4) the landlord seeks to recover possession on the basis of a notice to terminate a periodic tenancy, which notice was given to the tenant before the tenant's complaint.
(b) Notwithstanding the provisions of section 47a-20, a landlord may increase the rent of a tenant if: (1) The condition complained of was caused by the lack of due care by the tenant or another person of his household or a person on the premises with his consent or (2) the landlord has become liable for a substantial increase in property taxes, or a substantial increase in other maintenance or operating costs not associated with his complying with the complaint, not less than four months before the demand for an increase in rent, and the increase in rent does not exceed the prorated portion of the net increase in taxes or costs.
(c) Nothing in this section or section 47a-20 shall be construed to in any way limit the defense provided in section 47a-33. (Emphasis added.)
"As we have said on prior occasions, retaliation is not a defense to a summary process action brought because of nonpayment of rent. Smith v. Worsham, SPNH 8207-2132 (September 8, 1982); Jacobson v. Johnson, SPNH 8207-2006 (September 8, 1982); Maretz v. Apuzzo, 34 Conn.Sup. 594, 597 (1977)." Mordecai v. Botwe-Asamoah, Superior Court, judicial district of New Haven, Docket No. 8208-2228 (September 29, 1982, Foti, J.). See Bordiere v. Ramirez, Superior Court, judicial district of New Britain, housing court, Docket No. SPN 99 1031769 (December 23, 1999, Tanzer, J.) ( 1999 Ct.Sup. 16934, 16935-13936) ( 28 Conn. L. Rptr. 359). In Bordiere, the court held that "[w]hile the temporal sequence of the complaints and service of the notice would be significant in deciding a claim of retaliatory eviction, I need not determine the point in this case because neither General Statutes § 47a-20 nor General Statutes § 47a-33 pertains where the reason for the eviction is nonpayment of rent. General Statutes § 47a-20a entitled `Actions deemed not retaliatory' states, `Notwithstanding the provisions of section 47a-20, the landlord may maintain an action to recover possession of the dwelling unit . . . for nonpayment of rent . . .' This defense is not available to the defendants." Bordiere v. Ramirez, supra, Superior Court, 1999 Ct.Sup. 16935-13936.
(2) Condition of the Premises
As her Second Special Defense, the Tenant argues that no rent is due because the Landlord failed to properly maintain the premises. More specifically, the Tenant alleges the following: (1) During the course of the Tenant's occupancy of the premises, the Landlord unilaterally attempted to raise the rent; (2) At said time, the Landlord permitted the premises to fall into a state of disrepair, and the premises were no longer habitable; (3) As a result of the conditions of disrepair, the Landlord was not entitled to any rent or use and occupancy from the Tenant.
"To ensure that the landlord's duties are performed, General Statutes 47a-4a provides that [a] rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7. Generally, a tenant claiming the right to withhold rent must `show that the landlord's failure to comply with 47a-7(a) materially affects his safety . . . or has rendered the premises uninhabitable." (Citation omitted; internal quotation marks omitted.) Housing Authority v. Olesen, 31 Conn.App. 359, 363, 624 A.2d 920 (1993).
"General Statutes Sec. 47a-7, entitled "Landlord's responsibilities," provides in relevant part: "(a) A landlord shall: (1) comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant; (3) keep all common areas of the premises in a clean and safe condition; (4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him; (5) provide and maintain appropriate receptacles for the removal of ashes, garbage, rubbish and other waste incidental to the occupancy of the dwelling unit and arrange for their removal; and (6) supply running water and reasonable amounts of hot water at all times and reasonable heat except if the building which includes the dwelling unit is not required by law to be equipped for that purpose or if the dwelling unit is so constructed that heat or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection."
"Connecticut law recognizes that health or housing code violations may vitiate a tenant's obligation to pay rent but only serious and substantial violations affecting safety or well being." (Citation omitted; internal quotation marks omitted.) Elkies v. Bear, Superior Court, judicial district of New Haven at Meriden, Docket No. SPM CV 04-0287606 (July 6, 2004, Frazzini, J.) ( 2004 Ct.Sup. 10984).
The Tenant has "the burden of proof on her special defense that no rent was due under General Statutes section 47a-4a because of various health and housing code violations violating § 47a-7(a). Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (App.Sess. 1978)." Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10984. "[T]he sanctions in these sections [§§ 47a-7 and 47a-4a inclusive] are not triggered until and unless evidence is adduced at trial establishing that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant, . . ." (Citations omitted.) Visco v. Cody, 16 Conn.App. 444, 450-51, 547 A.2d 935 (1988).
"In enforcing the mandate of General Statutes § 47a-4a that no rent is due when a landlord has not complied with its statutory duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, courts have generally demanded more than a tenant's word that there are serious health or safety hazards to corroborate such a claim — such as a report from a fire marshal or housing inspector or an independent witness." (Internal quotation marks omitted.) Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10984. "[T]o establish uninhabitability, the tenant needs to do more than assert a unilateral, self-serving statement that the premises are untenantable." Evergreen Corporation v. Brown, 35 Conn.Sup. 549, 552, 396 A.2d 146 (1978) (suggesting that a tenant `utilize the broad range of municipal boards, agencies, and commissions' to remedy defects). Visco v. Cody, supra, 16 Conn.App. 450. "This court does not construe such cases as holding that a tenant's testimony is, as a matter of law, insufficient to prove an uninhabitability claim; see, e.g., Morgan v. White, 168 Conn. 336, 349, 362 A.2d 505 (1975); Denby v. Commissioner, 6 Conn.App. 47, 502 A.2d 954 (1986); but instead as suggesting that most courts will find the tenant's own word unpersuasive unless there is additional evidence to back up the claim." Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10985-986.
In Rosow v. Gonzalez, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. H-7905-01528 (July 5, 1979, Spada, J.), Judge Spada found that tenant failed to establish that the apartment was uninhabitable, although there were a number of problems. The tenant complained that the bedroom ceiling leaked, a broken window was not repaired, other windows could not be opened for ventilation, the heat did not work on several occasions, the front door was difficult to open, the apartment was infested with mice, and trash was found in the hallways which were also poorly lit. The court stated "that premises or a dwelling unit are unfit and uninhabitable when they fail to meet basic structural, mechanical and housing code regulations . . . Each situation needs to be examined on a case-by-case basis. Violations of the code do not, per se, mandate a finding of uninhabitability. There must be either a series of violations or a violation so substantial that continued occupancy would constitute a hazard to the safety and welfare of the occupants." In regards to the no heat complaint, the court found that "[t]he complaint of lack of heat in December 1978, even if believed, is waived because of the payment of rent."
In this case, "[t]his court does not doubt that the [T]enant requested, in good faith, that repairs be made and that repairs were necessary, but it is questionable that those violations complained of were substantial code violations . . ." Mordecai v. Botwe-Asamoah, supra, Superior Court. The Tenant claims that the Landlord failed to comply with his responsibilities under § 47a-7, to "make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . ." § 47a-7(a)(2). She introduced several photographs depicting the condition of the premises. The photographs show an apartment in need of some repairs. But the evidence presented fails to support a finding of "serious and substantial violations affecting safety or well being." Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10984. In addition, the Tenant arguably waived the no heat complaint because she paid rent through October 2005. See Rosow v. Gonzalez, supra, Superior Court.
The parties offered conflicting testimony regarding whether there was a complaint made to the New Britain Health Department regarding the condition of the premises. In weighing all the conflicting testimony on this issue, the Court has to credit Lupa's testimony that no complaint was made because there are no records on file with the health department regarding the premises.
The Tenant also claims that the premises have been rendered uninhabitable due to roach infestation. "Courts which have considered the relationship between General Statutes Sec. 47a-7 and 47a-4 have uniformly concluded that where the premises have been rendered uninhabitable by virtue of rodent and roach infestation, the tenant is relieved from the obligation to pay rent and may raise the uninhabitability of the apartment as a defense to a summary process action based on nonpayment of rent. CT Page 12630 Steinegger v. Rosario, 35 Conn.Sup. 151 (1979); Tucker v. Lopez, 38 Conn.Sup. 67 (1982). Whether the premises is uninhabitable to the extent that the tenant is relieved of the obligation to pay rent depends on the facts of each individual case and whether the uninhabitability is caused by the tenant. Hayes v. Capitol Buick, 119 Conn. 372 (1935)." Housing Authority, Hartford v. Williams, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 92006-65824 (October 8, 1992, Holzberg, J.) ( 1992 Ct.Sup. 9310). In Williams, the court considered a number of factors in concluding that the premises were uninhabitable. The maintenance records indicated that the roach problems were present from virtually the day the tenant moved into the apartment. The tenant made repeated complaints to the housing code department and the housing authority alleging that the apartment was infested with roaches, ants, and rodents. On numerous occasions, the housing authority exterminated the apartment. A housing code inspection confirmed the tenant's complaints. After the inspection, the housing authority took nearly two months to rectify the problem. The tenant's child was treated at the hospital for an allergic reaction to a bug bite received at the apartment. Because of the replacement of the heating system, there were open holes in the tenant's apartment in which the water and heating pipes run. As a result of the ongoing infestation, the tenant and her children had effectively moved out of the apartment and moved into the grandmother's apartment. Although the tenant's cleaning habits may have exacerbated the problems, they did not cause them.
In this case, the Tenant and her former roommates testified regarding the roach infestation. They testified that roaches were an ongoing and pervasive problem. They also claimed that the health department was contacted regarding the problems with the apartment. However, this claim was not corroborated by Mr. Lupa, the supervisor sanitarian for the New Britain Health Department. The Landlord admitted that there was a roach problem and testified that the apartment was fumigated several times. Although the Court credits the defense testimony, the evidence falls short of supporting the same conclusion reached in Williams, that the roach problem rendered the premises uninhabitable.
The evidence also suggests that the defendant's failure to pay rent was not solely motivated by the condition of the premises. See Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10987. The Court credits the Landlord's testimony that when he went to collect the November 2005 rent, the Tenant indicated that she did not have the money to pay the rent. "Although a tenant's reasons for not paying rent are not a necessary element for proving that no rent was due under § 47a-4a, the motives for someone's conduct tell much about the underlying facts and circumstances." Elkies v. Bear, supra, Superior Court, 2004 Ct.Sup. 10987.
Based on the evidence presented, the Court finds that the Tenant has failed to establish "that there is a substantial violation or series of violations of housing and health codes creating a material risk or hazard to the occupant . . ." Visco v. Cody, supra, 16 Conn.App. 450-51.
C Counterclaim
In her answer, the Tenant asserts a counterclaim for damages. More specifically, the Tenant alleges the following: (1) While the Tenant was in possession of the premises, the Landlord permitted the premises to fall into disrepair and become no longer habitable; (2) As a result of the defendant living in the uninhabitable premises, she and her child became ill: (3) As a result of said illness, the Tenant lost her employment and the income thereof; and (4) As a further result of the illness contracted by her child, the Tenant was put to medical expenses.
An action in damages is not usually heard with a summary process action. "`It has always been the policy of our law to limit the issues in an action of summary process to a few simple ones within the express scope of the statutory provisions.' Webb v. Ambler, 125 Conn. 543, 550-51, 7 A.2d 228 (1939). `Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.' Jo-Mark Sand Gravel Co. v. Pantanella, 139 Conn. 598, 600-01, 96 A.2d 217 (1953). `The purpose of summary process proceedings . . . is to permit the landlord to recover possession on termination of a lease . . . without suffering the delay, loss and expense to which he may be subjected under a common-law action . . . The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession.' Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973)." Ossen v. Wanat, 217 Conn. 313, 317, 585 A.2d 685 (1991). In this case, the Landlord did not object to having the counterclaim tried with the summary process action.
Based on the evidence presented, the Court finds that the Tenant failed to prove, by a fair preponderance of the evidence, the counterclaim. The Tenant did not provide sufficient evidence to support her claim. The Court does not credit the Tenant's testimony that the loss of heat in the apartment caused the child's alleged health problems. In addition, the defendant failed to offer any evidence of actual damages. Therefore, judgment is entered for the Landlord on the counterclaim.
IV CONCLUSION AND ORDER
The court finds, by a fair preponderance of the evidence, that the Landlord has proved all the elements of the summary process action. The court finds that the Tenant has failed to prove, by a fair preponderance of the evidence, any defenses. Having considered the law and equity, the court enters Judgment for the Landlord for Immediate Possession. The execution is stayed through August 31, 2006, subject to the Tenant making a payment for use and occupancy in the amount of $650 by August 10, 2006.