Judicial District of New Britain at New Britain
HHB CV054007672 S – 05-CBAR-2506 – 2005 WL 3509979
November 28, 2005
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT
The plaintiff has filed a Motion for Summary Judgment (#112.00) claiming there are no material facts in dispute. Plaintiff initially filed a summary process action seeking to evict the defendants Ocean State Job Lot Stores, of CT, Inc., Jane Doe and John Doe. Upon motion, the matter was transferred on September 16, 2005 from the Housing Session to the regular civil docket. The claim for summary judgment is based on two alternative grounds. First, that the lease terminated according to its terms when the City of Bristol acquired the property for a public use or purpose and sent notice of the termination to the defendants. Second, that the lease terminated due to the failure of the defendants to secure a certificate of occupancy thereby violating state statute and the terms of the lease. At oral argument on the Motion for Summary Judgment, the plaintiff abandoned the second ground acknowledging that any issue surrounding the failure to obtain a certificate of occupancy was not alleged in the complaint. As a result, the court will consider only the first ground set forth in the motion. The defendant Ocean State Job Lot Stores of Connecticut, Inc. has filed an objection to the motion arguing that there is a genuine issue of material fact as to plaintiff’s compliance with the wording (and interpretation) of the provision of the lease relied upon for termination of the tenancy.
Practice Book §17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It “is appropriate only if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). The trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). However, “the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Id. “A genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence.” (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Id., 379. In considering such a motion, the function of the court is “. . . not to decide issues of material fact, but rather to determine whether any such issues exist,” Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
Plaintiff purchased the property located at 100 North Main Street, Bristol Connecticut on March 21, 2005. The property is commonly known as the Bristol Centre Mall and the defendant Ocean State Job Lot of Connecticut, Inc. is a tenant in the mall. At the time of the purchase, the plaintiff acquired the existing lease between the prior owner and the defendant.
Plaintiff seeks to terminate the lease under §17.1 of the lease which reads in part as follows:
§17.1 Condenmation. If 10% or more of the Premises or 15% or more of the Center shall be acquired or condemned by right of eminent domain for any public or quasi public use or purpose, or if an Operating Agreement is terminated as a result of such an acquisition or condemnation, then Landlord at its election may terminate this lease by giving notice to Tenant of its election, and in such event rentals shall be apportioned and adjusted as of the date of termination.
The parties have disagreed over the interpretation of that portion of the provision allowing termination of the lease if the property “. . . shall be acquired or condemned by right of eminent domain . . .” Plaintiff argues that acquisition of the property by the municipality through a purchase is the equivalent of condemnation proceedings for the purposes of exercising the termination provision. Defendant argues that the “right of eminent domain” necessarily requires the institution of a formal condemnation process. Both parties have submitted documentary evidence in support of their positions.
Having reviewed the evidence and considered the arguments of the parties both at oral argument and in their briefs, the court finds there remains a genuine issue of material fact as to whether the acquisition of the property by the plaintiff constituted condemnation for purposes of §17.1 of the lease. Defendant has set forth sufficient evidence to raise a genuine issue which must be decided at trial.
For the foregoing reasons the Motion for Summary Judgment is denied.
BY THE COURT
Dan Shaban