Opinion
No. HDSP-151437
July 13, 2009
MEMORANDUM OF DECISION
This summary process action was brought by the plaintiff Joseph Solomon seeking to recover possession of premises known as 237 Oak Street, Space/Unit 3, Glastonbury, Connecticut from the defendants Michelle Duthrie d/b/a Innovative Floral Events Design. The plaintiff's notice to quit and complaint were brought on two grounds. Count one of the complaint alleges that the defendant originally had a right or privilege to occupy the premises but that any such right or privilege has terminated. Count two of the complaint alleges lapse of time. The defendant filed a motion to dismiss counts one and two of the complaint. The defendant argues that the court must dismiss count one because the plaintiff has failed to allege that he is the owner of the premises and therefore lacks standing. The defendant asserts that count two of the complaint must be dismissed because the defendant is a tenant at sufferance and a summary process action based on lapse of time may not be maintained against a tenant at sufferance.
COUNT ONE
The plaintiff alleges in count one of his complaint that "On or about July 1, 2008 or at some time subsequent thereto, the Defendant took possession of the following premises with 237 Oak Street, Space/Unit 3, Glastonbury Connecticut."
The defendant argues that the plaintiff's failure to allege ownership of the premises in the complaint renders the complaint defective and leaves the plaintiff without standing.
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D `Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005).
In her memorandum of law in support of her motion to dismiss count one, the defendant cites Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 925 A.2d 292 (2007). In Fort Trumbull, however, our Supreme Court reversed the trial court's dismissal of the plaintiff's complaint for lack of standing the court ruling that the plaintiff was merely required to make a colorable claim of harm and need not prove its case at the preliminary motion stage of the proceedings. Fort Trumbull at 804.
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . Thus, standing does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Internal quotation marks omitted.) Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 205 782 A.2d 242 (2001).
In determining whether a complaint is subject to dismissal for lack of jurisdiction, "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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998)."
The plaintiff has alleged the equivalent of ownership or a right superior to that of the defendant by the use of the words "the Defendant took possession of the . . . premises with the knowledge of the Plaintiff and/or the acquiescence of the Plaintiff." Moreover, the notice to quit possession which is attached to and made part of the complaint returned to court identifies and was signed by the plaintiff as "Landlord." The court finds that the plaintiff has made a colorable claim of harm sufficient to establish standing. Accordingly, the defendant's motion to dismiss count one of the plaintiff's complaint is denied.
COUNT TWO
The defendant argues that count two of the plaintiff's complaint must be dismissed because the defendant is a tenant at sufferance and a summary process action based on lapse of time may not be maintained against a tenant at sufferance.
Count two of the complaint alleges:
"1. On July 1, 2008 the Plaintiff as landlord and the Defendant entered into an oral lease for the term of one month for use and occupancy of the following premises: 237 Oak Street, Space/Unit 3, Glastonbury, Connecticut."
2. The Defendant took possession of the premises pursuant to the oral lease and still occupies the premises.
3. The lease term expired on February 28, 2009 by lapse of time."
The defendant's motion asserts that count two of the complaint must be dismissed because the plaintiff has alleged a lease for only "one month" beginning July 1, 2008 and without any allegation that the parties entered into a new lease after August 1, 2008. As a result, the defendant became a tenant at sufferance and the defendant argues that count two be dismissed because a summary process action based on lapse of time can not be maintained against a tenant at sufferance.
Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Rayhall v. Akim, Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). This court clearly has jurisdiction to hear summary process actions. The issue raised by the defendant is whether count two of the plaintiff's complaint is legally sufficient to sustain a summary process action based on lapse of time. The defendant's assertion with regard to count two should be brought as a motion to strike pursuant to Practice Book § 10-39. The court is permitted to construe the motion to dismiss as a motion strike and reach the merits of the issue. See, e.g., McCutcheon Burr, Inc., v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991); Commissioner v. Lake Phipps Land Owners Corp., 3 Conn. App. 100, 102, 485 A.2d 580 (1985). Since the parties have fully briefed the issue of whether count two is legally sufficient, the court will regard the defendant's motion to dismiss as a motion to strike.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 624, 910 A.2d 209 (2006).
Under the prevailing doctrine, "[f]or lapse of time to be a valid reason for the issuance of a notice to quit there must an underlying lease whether oral or written. Lapse of time is not a sufficient reason to terminate a tenancy at sufferance. A tenancy at sufferance does not involve a contract or a lease." Shough v. Hogan No. SPNH 9702-49735 March 21, 1997 (Levin, J.), Bermudez v. Rodriguez, H-798, December 17, 1986 (Goldstein, J.), Duprey v. Bourque, H-514, February 8, 1984 (Aronson, J.), Yale University v. Valinho, H-1033, October 12, 1994 (DiPentima, J.), Invest II. v. The Southern Connecticut Mental Health Substance Abuse Treatment Center, SNBR-440, September 27, 1995 (Tierney, J.), Commissioner of Transportation v. The Dock, Inc., SNBR-446, November 20, 1995, (Tierney, J.)" Invest II v. Southern Connecticut Mental Health/SUB. AB., No. SBPR 9510-30624 (December 6, 1995); Larsen v. Timothy's Ice Cream, Inc., No. SPBR 9505-29502 (June 30, 1995).
Count two of the plaintiff's complaint alleges an agreement with the defendant for "one month." In the absence of an allegation of any further agreement, the defendant thereafter became a tenant at sufferance. No tenancy could be inferred because of the defendant's holding over. General Statutes § 47a-3d.
[4] General Statutes "Sec. 47a-3d. (Formerly Sec. 47-22). Holding over not evidence of new lease. Determination of monthly lease. Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only,"
Count two of the plaintiff's complaint is stricken.
SO ORDERED.