Opinion
No. 566365
March 19, 2004
MEMORANDUM OF DECISION
On July 8, 2003, Brian Massey, the plaintiff, filed a complaint against Irving Wong, the defendant. The plaintiff alleges the following facts. In 1947, the plaintiff and his family began renting an apartment on Lincoln Avenue in New London for $370 a month pursuant to an oral agreement with Mary D'Amico. In 1971, Gene and Yue Fue Wong became the new owners of the apartment and the plaintiff continued to pay them monthly rent for the same amount. In 1998, the defendant began collecting the monthly rent for the same amount. In December 2002, the defendant increased the plaintiff's rent to $650 a month.
During the plaintiff's tenancy, the defendant violated General Statutes § 47a-7 in the following ways. The defendant failed to maintain the heating system in a safe working condition. While renovating the plaintiff's apartment, the defendant turned off the water supply. The defendant also placed the bathtub and sink in the kitchen, scraped paint from the walls creating dust throughout the apartment, turned off the power, and abandoned projects for several days.
"Any landlord shall . . . 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." General Statutes § 47a-7(a)(4).
"Any landlord shall . . . 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." General Statutes § 47a-7(a)(6).
The defendants' activities rendered the apartment uninhabitable and forced the plaintiff to obtain replacement housing from December 2001 through July 2003. The plaintiff continued to pay the defendant rent during the period that the apartment was uninhabitable. The plaintiff was also forced to remove his personal belongings from the apartment and incurred storage expenses for those items. The defendant owes the plaintiff $6,390 for the period during which the apartment was uninhabitable.
On October 3, 2003, the defendant filed a motion to dismiss, accompanied by a memorandum of law. On October 22, 2003, the plaintiff filed an objection, accompanied by a memorandum of law and two exhibits.
DISCUSSION
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
The defendant argues that the court lacks subject matter jurisdiction because the plaintiff failed to allege in his complaint that he provided notice in accordance with General Statutes § 47a-14h. The plaintiff argues that he provided the municipal authorities with notice in compliance with § 47a-14h.
Here, the plaintiff does not allege in his complaint that he seeks damages pursuant to any statute. The defendant, however, suggests in his motion to dismiss that the plaintiff seeks recovery pursuant to either General Statutes §§ 47a-14h or 47a-12. The plaintiff responds in his opposition that he complied with the notice requirements set forth in § 47a-14h. He also provides evidence to support his claim of adherence to this statute. The court will therefore assume that the plaintiff is pursuing a cause of action under § 47a-14h only.
General Statutes § 47a-14h(a) provides in relevant part: "Any tenant who claims that his landlord has failed to perform his legal duties, as required by section 47a-7 . . . may institute an action in the superior court having jurisdiction over housing matters in the judicial district in which he resides to obtain the relief authorized by this section and sections 47a-20 and 47a-68." The statute further provides: "The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege . . . that at least twenty-one days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code . . ." General Statutes § 47a-14h(b).
In a similar case brought pursuant to § 47a-14h, the Supreme Court held that the trial court did not err in dismissing the plaintiff's claim where she failed to allege in her complaint that she filed timely notice with the proper municipal agency. Dugan v. Milledge, 196 Conn. 591, 596, 494 A.2d 1203 (1985). The court reasoned, "[t]he plaintiff's cause of action was purely statutory. The requirement of notification to the housing code enforcement agency is not directory but mandatory. Compliance with this essential condition was a requisite for the court's jurisdiction . . . The allegation required by the act was a vital part of the plaintiff's case. It went to the very existence of the action, which, in the absence of compliance with the requirements of the act, does not exist at all." (Citations omitted.) Id., 595.
Here, although the plaintiff provided exhibits to demonstrate compliance with § 47a-14h(b), they do not suffice. The plaintiff failed to allege in his complaint that he filed a grievance with the proper municipal authorities at least twenty-one days prior to commencing this lawsuit. Because the plaintiff's claim is based solely on § 47a-14h and he did not comply with the statutory requirements, this court lacks subject matter jurisdiction. In light of the foregoing, the defendant's motion to dismiss is granted.
The plaintiff provided a copy of a request for inspection that he filed with the New London Building Division on January 15, 2003. He also submitted an affidavit stating that he filed a tenant complaint with the local housing authorities in compliance with local and state regulations.
D. Michael Hurley, JTR