Opinion
No. HHD-CV-106020108S
June 13, 2011
MEMORANDUM OF DECISION
The defendants, Housing Authority of the City of Bridgeport (BHA), its executive director, Nicholas Calace, and its director of planning and modernization, Peter Hance, move to dismiss the plaintiff, Resource Services, LLC's complaint against them claiming a lack of subject matter jurisdiction because the plaintiff failed to follow a disputes resolution procedure in a contract between the parties prior to commencing the present action. The defendants, Leonard Hopper and Mark K. Morrison Associates, Ltd. (MKM), also move to dismiss the plaintiff's complaint against them for the same reason.
The action was originally filed in the judicial district of Fairfield at Bridgeport, and assigned Docket No. CV-10-6007682. Subsequent to the filing of the motion to dismiss and related memoranda, and arguments and an evidentiary hearing on the motion, the case was transferred to the complex litigation docket in the judicial district of Hartford at Hartford (which docket number appears in the case caption). Counsel for the parties requested that the court retain jurisdiction to decide the motion, and the court agreed to do so.
In deciding this motion, the court must admit the well pleaded facts and construe them in a manner most favorable to the pleader. The action arises from a construction contract entered into by the plaintiff and the BHA. The project, which received federal funds, required the plaintiff to make parking lot improvements to Harborview Towers in Bridgeport, Connecticut The plaintiff alleges that the project plans drafted by MKM were deficient and that, as a consequence, it became necessary to issue numerous change orders that "when approved will exceed half the price of the original contract" The plaintiff claims that it has performed all of its contractual obligations and that the BHA has failed to pay them the amount of $214,914 due and owing. The numerous change orders have given rise to the parties' dispute.
In its complaint, the plaintiff alleges breach of contract and unjust enrichment against the BHA. Additionally, the plaintiff alleges the following claims against all of the named defendants: breach of implied duty of good faith, negligence, CUPTA violations, unlawful interference with a business contract, fraudulent misrepresentation, and negligent misrepresentation.
The only claim made by the BHA, Calace and Hance, in support of their motion to dismiss is that that the plaintiff failed to comply with a contractual condition precedent to commencing the present action. Hopper and MKM, make the same claim and adopt the BHA's memorandum in furtherance of their motion. In opposition, the plaintiff contends that the disputes resolution clause does not constitute a condition precedent. The plaintiff further asserts that the court does not lack subject matter jurisdiction over the individual defendants because they were not parties to the contract.
"[A] motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties . . . [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
"[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). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Wilcox v. Webster Ins. Co., 294 Conn. 206, 214, 982 A.2d 1053 (2009).
I
The court will first consider the defendants' claim that the action must be dismissed for a lack of subject matter jurisdiction because the plaintiff failed to comply with a condition precedent in the contract. The agreement between the plaintiff and the BHA incorporates a U.S. Department of Housing and Urban Development form entitled "Conditions for Construction Contracts — Public Housing Programs" (Conditions) Section 31 of the Conditions sets forth dispute resolution procedures, which provide, in part, that "all disputes arising under or relating to this contract, including all claims for damages for the alleged breach thereof which are not disposed of by agreement, shall be resolved under this clause." Any "claims" made by the plaintiff "shall be made in writing and submitted to the Contracting Officer for a written decision," The dispute resolution provisions further provide that "[t]he Contracting Officer's decision shall be final unless" there is another appellate step in the public housing authority, an appeal is referred to a mediator or arbitrator, or a court action is filed. Section 1 of the Conditions, which provides definitions, states that a "Contracting Officer means the person delegated the authority by the PHA to enter into, administer, and/or terminate this contract and designated as such in writing to the Contractor . . . The Contracting Officer shall be deemed the authorized agent of the PHA in all dealings with the Contractor."
The defendants contend that the dispute resolution procedure "is analogous to other dispute resolution clauses held by Connecticut courts to constitute a condition precedent to subject matter jurisdiction, such as arbitration and/or mediation provisions." They claim that the language of that particular section of the contract "indicates the clear intention of the parties that the disputes resolution procedure set forth therein is a condition precedent to bringing a court action."
In support of their argument, the defendants cite to two Superior Court decisions of this state. In Coburn v, Grabowski, Superior Court, judicial district of Waterbury, Docket No. CV 96 0134935 (May 29, 1997, Pellegrino. J.), the court construed a mediation clause in a purchase and sale agreement concerning real property as evincing the parties' clear intent that mediation was a condition precedent to suit. In reaching that conclusion, the court applied the law relating to arbitration as a condition precedent to litigation. Id. This decision was followed in Ventre v. Ventre, Superior Court, judicial district of Fairfield, Docket No. CV 00 377148 (January 9, 2001, Rush, J.), wherein the court stated that "[t]o the effect that mediation clauses should be construed identically to arbitration clauses and where the contract creates a condition precedent to suit, that agreement will be enforced." Id.
In opposing the motion the plaintiff cites to the case of Cafarelli v. Colon-Collazo, Superior Court, judicial district of Danbury, Docket No. CV 05 5000279 (June 20, 2006, Schuman, J.) ( 41 Conn. L. Rptr. 539,), in support of its position that the dispute resolution clause in the present action is not a condition precedent to litigation. The plaintiff's reliance on that case is misplaced to the extent that the dispute resolution clause in that case was found to be a condition precedent to suit and the court concluded that it lacked subject matter jurisdiction for other reasons.
In Cafarelli, the court noted the issue as follows: "Because § 9.10.1 makes mediation rather than arbitration a condition precedent to litigation, and because it is undisputed that the parties have also failed to engage in mediation, the question becomes whether the absence of mediation, when made a condition precedent in the governing contract, deprives the court of subject matter jurisdiction" Id., 541. In considering the issue, the court noted that the Coburn and Ventre cases concluded "that failing to mediate as a condition precedent to litigation deprives the court of subject matter jurisdiction," but disagreed with those cases. Id. The court in Cafarelli held that "although mediation is a condition precedent to court action, the failure of the parties to take advantage of this opportunity does not deprive the court of subject matter jurisdiction." Id. The court differentiated mediation and arbitration on the basis that the former is nonbinding and does not provide for a contested hearing. Id.
The court finds the Coburn and Ventre cases persuasive, and disagrees with the conclusion of the court in Cafarelli. Therefore, the court rejects the plaintiff's argument based on the decision in CT Page 13469 Cafarelli that the dispute resolution clause in the present action does not provide for a contested hearing and, consequently, the court lacks subject matter jurisdiction.
The defendants also claim that the case of Philadelphia Housing Authority v. Dore Associates, 111 F.Sup.2d 633 (E.D. Pa. 2000), provides strong persuasive authority for their motion. That case involved a demolition contract between the plaintiff and the defendant that contained the same federal general conditions form, and disputes resolution clause, that is part of the agreement in the present action. Id., 634-35.
The defendant moved for summary judgment contending that the plaintiff failed to comply with the terms of the dispute resolution clause that provided the defendant with three options to challenge a decision by the contracting officer. Id., 635. The court held as follows: "The plain language of the contract requires that the disputes at issue here be submitted to the contracting officer and permits Dore to exercise the option of taking the matter to court, proceeding with arbitration or mediation, or appealing the contracting officer's decision through internal procedures. The PHA's contracting officer did not issue a decision in a way that permitted Dore to exercise any such option." Id., 637. In view of its conclusion, the court granted the defendant's summary judgment motion and stayed the case pending compliance with the terms of the contract. Id.
The court does not find the Dore Associates case to be as persuasive as the defendants contend because the court in that case did not address the issue of whether the contractual language provided that the dispute resolution procedure was a condition precedent to litigation. The issue to be decided was whether the housing authority's contracting officer issued a decision such that Dore Associates could pursue any of the three appeal options. The court does take note, however, of the following language by the court as supportive of the defendants' position that plaintiff was initially required to submit any claims to the contracting officer: "The plain language of the contract requires that the disputes at issue here be submitted to the contracting officer and permits Dore to exercise the option of taking the matter to court, proceeding with arbitration or mediation, or appealing the contacting officer's decision through internal procedures." Philadelphia Housing Authority v. Dore Associates, supra, 111 F.Sup.2d 637.
In Multi-Service Contractors, Inc. v. Vernon, 181 Conn. 445, 447-48, 435 A.2d 983 (1980), our Supreme Court summarized the law applicable to the plaintiff's claim in the present action as follows:
Where a contract contains a stipulation that the decision of arbitrators on certain questions shall be a condition precedent to the right of action on the contract itself such a stipulation will be enforced and, until arbitration has been pursued or some sufficient reason given for not pursuing it, no action can be brought on the contract. Kantrowitz v. Perlman, 156 Conn. 224, 227-28, 240 A.2d 891 (1968). Whether an agreement makes arbitration a condition precedent to an action in court depends on the language of the arbitration clause. While it is true that in the absence of express language a provision for arbitration may be construed, by implication, to be a condition precedent to suit that implication must be so plain that a contrary intention cannot be supposed. It must be a necessary implication. The mere agreement to arbitrate, standing alone, does not give rise to the necessary implication that arbitration is a condition precedent to an action in court. For arbitration to be a condition precedent, the agreement to arbitrate must expressly so stipulate, or it must necessarily be implied from the language used. Kantrowitz v. Perlman, supra, 227-28; First Ecclesiastical Society v. Besse, 98 Conn. 616, 119 A. 903 (1923).
The provision in the building contract at issue in Multi-Service Contractors provided that "all claims, disputes and other matters in question between the contractor and owner arising out of, or relating to, the Contract Documents or the breach thereof . . . shall be decided by arbitration . . ." Id., 446. The trial court granted the defendant town's motion to dismiss the action for lack of subject matter jurisdiction. Id., 447. The Supreme Court reversed finding that "[t]he arbitration clause . . . does not require, either by express language or by necessary implication, arbitration as a condition precedent to court action." Id., 449. See also Krantrowitz v. Perlman, 156 Conn. 224, 228-29, 240 A.2d 891 (holding purchase and sale of real estate agreement, providing that "[i]n the event that the parties shall be unable to agree with respect to any question relating to the Recreational Area which may arise under the provisions of this Article, or otherwise, it is agreed that such question or controversy shall be submitted for arbitration . . ." neither expressly provides, nor give rise to a necessary implication, that arbitration was a condition precedent to a court action.).
The plaintiff cites to the Kantrowitz and Multi-State Service Contractors cases in support of its claim that its motion to dismiss should be granted because "[t]here is simply no language in the subject contract, either express or implied, that the submission of the [p]laintiff's claims to the Contracting Officer is a condition precedent to this action." The clauses at issue in those cases, however, are distinguishable as a matter of contract construction.
In construing the disputes resolution clause in this action, and specifically whether the procedure therein is a condition precedent to litigation, the court is guided by bedrock principles of contract construction. "It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . A contract is unambiguous when its language is clear and conveys a definite and precise intent. The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Citations omitted; internal quotation marks omitted.) Electric Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523, 528-29, 897 A.2d 146 (2006).
The court finds that the language of the clause is definitive, clear and unambiguous. It provides that all disputes concerning the construction contract are subject to the dispute resolution clause. A claim is to be submitted in writing to the contracting officer for a written determination of the claim. The contracting officer's decision on the claim is final unless the contractor takes the following additional action: (1) appeals the decision to a higher level in the BHA; (2) refers the appeal for mediation or arbitration; or (3) files a court action.
There is no claim in this case that the disputes between the parties, primarily concerning the change orders, are not subject to the disputes resolution clause.
The clause clearly makes submission of a claim to the contracting officer a condition precedent to court action. Even if it is not expressly provided, it is a necessary implication from the language used by the parties: The clause provides that the contracting officer's decision is final unless the plaintiff pursues the further designated resolution procedures. The implication of the language is so plain that a contrary intention to the procedure being a condition precedent to litigation cannot be found; that is, a dispute under the contract is first submitted to the contracting officer for his decision, which decision is final and binding unless the party who submitted the claim proceeds further with certain appellate options. The plain language of the agreement provides that the administrative process under the contract must precede the legal process.
"A necessary implication is always quite as obvious from the terms of the contract as if the words expressed it in fact." (Internal quotation marks omitted.) First Ecclesiastical Soc. v Besse, 98 Conn. 616, 623 119 A. 903 (1923).
More than the Dore Associates case cited by the defendants, the court finds the case of J L Associates, Inc. v. Philadelphia Housing Authority, United States District Court, Docket No. CIV A. 92 4634 (E.D. Pa., September 10, 1993), to be factually similar and its reasoning strongly persuasive on the issue before the court. That action concerned contractual disputes regarding six separate renovation projects that the defendant housing authority employed the plaintiff to do. Id. The defendant moved for summary judgment on certain counts of the complaint asserting that the court lacked subject matter jurisdiction over those counts on that basis that the project was not complete and the defendant could be sued only on a completed project. Id. The disputes resolution clause governing the parties was essentially identical to the one in the present case. Id. In granting summary judgment in favor of the defendant housing authority, the court "concludes that it cannot adjudicate [the counts) until [the plaintiff) has completed the contract and [the defendant] has made its final inspection and either approved or rejected a final release . . . The plain language of the Disputes Provision evidences that all contractors . . . must exhaust the PHA-HUD administrative process before filing suit in federal court. The policy behind the contract language is that the [defendant] must be given an opportunity to inspect the work and resolve the cost and site changes before a court of law can exercise jurisdiction over these types of disputes." Id.
The parties in this action agreed by the definitive contract language used that the contracting officer was to decide a written claim before any court or other dispute intervention. The language of the clause, similar to the language in some arbitration clauses, makes the determination of a written claim a condition precedent to the present court action. Because the plaintiff has failed to adhere to the administrative procedures it agreed to under the contract, the defendants' motion to dismiss based on a lack of subject matter jurisdiction is granted.
The plaintiff alternatively claims that the court has subject matter jurisdiction because it complied with the disputes resolution clause by submitting a written claim to the contracting officer that was not acted upon within sixty (60) days after the officer's receipt of the request. The court held an evidentiary hearing limited solely to that issue. See Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983) ("When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.") The court finds that the plaintiff failed to prove compliance with the clause. It was clearly evident, as expressed by the court during the hearing, that the communications between the parties that the plaintiff asserted constituted compliance were merely part of a series of ongoing proposals, discussions and negotiations relating to the unresolved change order issues.
II
The plaintiff further claims that the defendants' motion to dismiss for lack of subject matter jurisdiction based on the plaintiff's failure to satisfy a condition precedent under the construction contract cannot apply to the non-BHA defendants; those being Calace, Hance, Hopper and MKM. The objection by the plaintiff is premised on the assertion that the non-BHA defendants are not parties to the agreement and "cannot be held to the dispute clause without the consent of those parties." The plaintiff cites to the court's decision in Multi-Service Contractors case as supportive of its position. BHA, Calace and Hance claim that the Multi-Service case is inapplicable because the defendants move to dismiss the plaintiff's action based on "a federally mandated disputes resolution clause that is a condition precedent to litigation." They also claim that both Calace and Hance are intended beneficiaries of the clause. Hopper and MKM claim that the motion to dismiss should be granted as to them because "not only do the allegations of the [c]omplaint all arise under or relate to the [c]ontract, but the allegations are so intricately linked that it would be impossible to resolve claims against the BHA separately from the claims against the remaining defendants." These defendants, relying on federal case law, counter that the plaintiff is equitably estopped from asserting such an objection. Additionally, the defendants distinguish this case from the Multi-Service Contractors case relied on by the plaintiff.
In Multi-Service, the plaintiff contractor sued the town, and members of the town's building committee in their individual and official capacities, claiming that there was a balance due under a building contract. Multi-Service Contractors, Inc. v. Vernon, supra, 181 Conn. 446. The town moved to dismiss the action on the ground that the contract provided that arbitration was a condition precedent to a court action. Id. The Supreme Court reversed the trial court's granting of the town's motion to dismiss in favor of all of the defendants for the reasons that the language of the contract did not make arbitration a condition precedent to an action in court and the members of the building committee were not parties to the agreement. Concerning the members, the Court stated that "the parties to the contract are the town of Vernon and the plaintiff. Count four of the complaint names the members of Vernon's building committee, both individually and in their official capacities, as defendants. Since they are not parties to the contract and cannot be joined in arbitration without their consent, the court erred in granting their motion to dismiss." Id., 449.
The plaintiff relies on the holding concerning the building committee members in contending in the present case that the non-parties to the construction agreement, Calace, Hance, Hopper and MKM, cannot move for dismissal of the action, but only the BHA can so move. Hopper and MKM attempt to distinguish the holding in the Multi-Service case as follows: "In this case, the dispute resolution clause at issue simply requires that the [p]laintiff submit a claim in writing to the Contracting Officer and await a decision for sixty days as a condition precedent to bringing a lawsuit. The enforcement of the disputes resolution clause in this case would not require any party to be forced into arbitration without its consent. Instead, compliance with the dispute resolution clause prior to bringing suit . . . would have no effect on the [p]laintiff's ability to eventually file suit against any party." Hopper and MKM cite to federal case law on the issue of equitable estoppel in support of their position that they have properly moved to dismiss the action. The issue raised by the non-BHA defendants is whether the court should apply principles of equitable estoppel under the circumstances of this action where the plaintiff makes allegations of misconduct against all of the defendants that are integrated with, and dependant upon, the construction contract to which the BHA is only defendant signatory, and Calace, Hance, Hopper and MKM are non-signatories. To prohibit the non-signatory defendants from joining the signatory defendant in seeking to dismiss the action based on a failure of a condition precedent would be fundamentally unfair. For the reasons hereinafter discussed, the court agrees with Hopper and MKM that the non-BHA defendants can join the defendant BHA in moving to dismiss the action.
The court finds the decision in Grigson v. Creative Artists Agency, 210 F.3d 524 (5th Cir. 2000), to be strongly persuasive. The action involved a distribution agreement concerning a movie released in the early 1990s titled Return of the Texas Chain Saw Massacre. Matthew McConaughey and Renee Zellweger appeared in the movie. Id., 525-26. While the action was pending in the federal district court, the defendants, non-signatories to the distribution agreement, moved to compel arbitration under the terms of the agreement. Id., 526. The district court dismissed the plaintiff's action finding that the plaintiffs "were equitably estopped from relying upon Defendants' being non-signatories. [The district court's decision] was based upon holding that, because the claims are so intertwined with, and dependent upon, the distribution agreement, its arbitration clause should be given effect." Id.
On appeal, the Fifth Circuit Court noted that the issue of first impression was "whether the district court abused its discretion by applying equitable estoppel to compel arbitration for an action centered on tortious interference with a contract with an arbitration clause, brought by signatories to the contract against non-signatories, the court holding that, because this action is intertwined with, and dependent upon, that contract, its arbitration agreement should be given effect." Id., 525.
In affirming the action of the district court, the Court agreed "with the intertwined-claims test formulated by the Eleventh Circuit." Id., 527. "The Eleventh Circuit has taken the lead in applying equitable estoppel under the intertwined-claims basis . . . Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. When each of a signatory's claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory's claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Second, application of equitable estoppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Otherwise the arbitration proceedings between the two signatories would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted." (Citations omitted.) Id., 527.
The Court noted that "the lynchpin for equitable estoppel is equity-fairness." Id., 528. Based on the facts in Grigson, the Court found that "it would be especially inequitable where, as here, a signatory non-defendant is charged with interdependent and concerted misconduct with a non-signatory defendant. In such instances, that signatory, in essence, becomes a party, with resulting loss, inter alia, of time and money because of its required participation in the proceeding. Concomitantly, detrimental reliance by that signatory cannot be denied: it and the signatory-plaintiff had agreed to arbitration in lieu of litigation (generally far more costly in terms of time and expense); but, the plaintiff is seeking to avoid that agreement by bringing the action against a non-signatory charged with acting in concert with that non-defendant signatory." Id. In view of the foregoing, the Court held that "[t]he district court did not abuse its discretion by concluding that [p]laintiffs' claims are so intertwined with and dependent upon the Distribution Agreement that the arbitration agreement within the Distribution Agreement should be given effect. This conclusion is compelled by comparing the complaint (the operative facts for purposes of the motion to compel arbitration) with the distribution agreement." Id., 528-29.
The causes of action alleged by the plaintiff in this case against the defendants arise from the plaintiff's claim that MKM negligently designed the project plans resulting in the issuance of multiple change orders that would "exceed half the price of the original contract" if approved. In the first count, alleging breach of contract, the plaintiff claims that it has fully performed and that the BHA has failed to pay to it the amount of $214,914. The second and third counts against the BHA, alleging a declaratory judgment under the contract and unjust enrichment, and the remaining six counts against all of the defendants, arise from the same cause of action; that is the negligently designed plans and the resulting change orders. Therefore, the signatory to the agreement, the BHA, and the non-signatories to the agreement, Calace, Hance, Hopper and MKM, are alleged by the plaintiff to have been complicit in a construction project based on improperly designed plans causing otherwise unnecessary cost overruns for which the BHA has refused to pay the plaintiff. As to Calace, Hance, Hopper and MKM, the plaintiff is seeking to bypass the disputes resolution clause by asserting that that clause does not apply to non-signatories to the agreement. As was commented by the Court in Grigson, "a signatory to that agreement cannot . . . have it both ways: it cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration's applicability because the defendant is a non-signatory . . . Again, to allow such inconsistent positions would be inequitable, to say the least." Id., 528.
In this case, as in Grigson, the plaintiff's claims against the defendants are so intertwined with, and dependant upon, the construction contract, that the principles of equitable estoppel apply to render the disputes resolution clause applicable to the non-signatory defendants, Calace, Hance, Hopper and MKM. As previously discussed, the plaintiff has failed to comply with the clause. Therefore, the defendant's motion to dismiss due to a lack of subject matter jurisdiction is granted as to all of the defendants.
The plaintiff requests that if the court grants the defendants' motion to dismiss, then it should further order that the action be stayed pending the plaintiff's compliance with the disputes resolution procedure. The plaintiff's request is improper. "`Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . . As a result, the trial court was required to address the jurisdictional challenge before ruling on other motions, and, once it decided that it lacked subject matter jurisdiction, it was bound and required to dismiss the case . . . Accordingly, nothing was left before the trial court on which to act . . . Therefore, the trial court could not properly have addressed the plaintiff's motion for a stay. American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384, 389-90, 704 A.2d 243 (1997), cert. denied, CT Page 13470 244 Conn. 384 (1998). Therefore, the plaintiff's motion to stay is denied.
In view of the foregoing, the defendants' motions to dismiss (107 and 114) are granted.