Cohen v. Postal Holdings, LLC ( 2020 )

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CHAD E. COHEN ET AL. v.
POSTAL HOLDINGS, LLC
(AC 42912)
DiPentima, C. J., and Moll and Devlin, Js.
Syllabus
The plaintiffs sought to recover damages from the defendant for private
nuisance and negligence as a result of harm they allegedly suffered
when the parties had been abutting property owners and the real prop-
erty owned by the defendant allegedly had been in a dangerous condition
that the defendant had failed to prevent or to abate. The defendant’s
predecessor lessors executed a ground lease of the property with U
Co., a federal agency, and, subsequently, the defendant became the sole
owner and sole lessor of the subject property. The trial court granted
the defendant’s motion for summary judgment. On the plaintiffs’ appeal
to this court, held:
1. The trial court properly granted the defendant’s motion for summary
judgment as to the claim of negligence and determined that the defendant
did not maintain control of the property and, thus, did not owe a duty
of care to the plaintiffs: the ground lease, in clear and unambiguous
terms, demised full control of the property to U Co. and divested any
control of the property from the defendant; moreover, this court declined
to consider whether the defendant exercised de facto control over the
property, as the ground lease clearly and unambiguously provided that
U Co. maintained control of the property.
2. The trial court properly granted the defendant’s motion for summary
judgment as to the plaintiffs’ private nuisance claim; the ground lease
demised full control of the property to U Co. and provided that U Co.’s
responsibility for maintenance shall be fulfilled at such time and in such
manner as U Co. considers necessary and provided the defendant no
right to enter the property to perform maintenance or repairs or to
demand that U Co. maintain the property and, thus, the defendant’s
inaction with regard to the condition of the property could not be
characterized as causing a negligent or intentional interference with the
plaintiffs’ use and enjoyment of their property.
Submitted on briefs April 22—officially released July 28, 2020
Procedural History
Action to recover damages for private nuisance, and
for other relief, brought to the Superior Court in the
judicial district of Danbury, where the plaintiffs filed an
amended complaint; thereafter, the court, Krumeich,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiffs appealed to this court. Affirmed.
Beverley Rogers, submitted a brief for the appel-
lants (plaintiffs).
Matthew G. Conway and Raymond M. Gauvreau
submitted a brief for the appellee (defendant).
Opinion
MOLL, J. The plaintiffs, Chad E. Cohen and Kirsten
Cohen, appeal from the summary judgment rendered by
the trial court in favor of the defendant, Postal Holdings,
LLC, on their operative two count complaint sounding
in negligence and private nuisance. On appeal, the plain-
tiffs claim that the trial court improperly concluded
that (1) the defendant was not liable for negligence on
the ground that there was no genuine issue of material
fact that the defendant did not exercise control over
the leased premises at issue and, therefore, did not owe
a duty of care to the plaintiffs, who, at all relevant times,
owned abutting property, and (2) the defendant was
not liable for private nuisance on the ground that there
was no genuine issue of material fact that the defendant
did not interfere with the plaintiffs’ use and enjoyment
of their abutting property. We disagree, and, accord-
ingly, we affirm the summary judgment of the trial
court.1
The following facts and procedural history are rele-
vant to our resolution of this appeal. In 1982, Connecti-
cut Equities Corp. and Edward H. Benenson (original
lessors) executed a ground lease with the United States
Postal Service (USPS) pursuant to which the original
lessors demised, leased, and rented to USPS real prop-
erty now known as 26 and 28 Catoonah Street in Ridge-
field. Paragraph 8 of the ground lease provided:
‘‘[USPS], during the term of this lease and any options
hereunder, hereby agrees to save harmless and indem-
nify the Lessor from all claims, loss, damage, actions,
causes of action, expense and liability resulting from
the use of the demised property by [USPS] whenever
such claims, loss, damage, actions, causes of action,
expense and liability arise from the negligent or wrong-
ful act or omission by an employee while acting within
the scope of his employment, under circumstances
where [USPS], if a private person, would be liable in
accordance with the law of the place where the negli-
gent or wrongful act or omission occurred.’’ Paragraph
9 of the ground lease provided in relevant part: ‘‘Except
as otherwise provided herein, [USPS], at its own cost
and expense, shall construct and maintain all buildings,
structures and improvements on the demised premises.
. . . [USPS’] responsibility for maintenance shall be
fulfilled at such time and in such manner as [USPS]
considers necessary.’’
In 1983, the original lessors and USPS executed an
amendment to the ground lease, which provided, inter
alia, that USPS was prohibited from constructing any
fences or barriers on the leased premises with the
exception of a proposed chain link fence described in
the amendment. The amendment further provided that
all terms and conditions of the ground lease not modi-
fied thereby, which included paragraphs 8 and 9,
remained in full force and effect.
Prior to December 13, 2006, Lisa Quattrocchi, Amy
Aronson, and the estate of Edward H. Benenson (suc-
cessor lessors) acquired title to 26 and 28 Catoonah
Street as well as the original lessors’ interest in the
ground lease. On December 13, 2006, the successor
lessors and USPS executed a second amendment to the
ground lease, which, inter alia, created a new schedule
of rents. The amendment further provided that all terms,
conditions, and covenants of the ground lease not modi-
fied thereby, which included paragraphs 8 and 9,
remained in full force and effect.
In 2010, by way of a quitclaim deed, the defendant
became the sole owner of 26 and 28 Catoonah Street.
In 2011, by way of an assignment and assumption of
the ground lease, the defendant became the sole lessor
of 26 and 28 Catoonah Street.
On October 8, 2013, the plaintiffs commenced the
present action against the defendant, raising one count
sounding in private nuisance. In their original com-
plaint, the plaintiffs alleged, inter alia, that 28 Catoonah
Street (property)2 had consisted of an ‘‘unused lot with
an abandoned structure in an obvious state of severe
disrepair and neglect’’ since approximately 2006, and
that, as a result of the defendant’s failure to prevent or
to abate the dangerous condition of the property, they
were unable to sell their abutting property.
On March 11, 2014, the defendant filed a motion to
implead USPS, which the trial court, Ozalis, J., granted
on April 16, 2014. On May 16, 2014, the defendant served
a third-party complaint on USPS, alleging common-law
and contractual indemnification. On June 4, 2014, pur-
suant to 28 U.S.C. § 1442 (a) (1) (2012), USPS removed
the matter to the United States District Court for the
District of Connecticut. See Cohen v. Postal Holdings,
LLC, United States District Court, Docket No.
3:14CV800 (AWT) (D. Conn. June 4, 2014).
After the matter had been removed to federal court,
the plaintiffs filed an amended two count complaint
sounding in private nuisance and negligence. The defen-
dant answered the amended complaint and asserted
several special defenses.
On June 20, 2014, USPS filed a motion to dismiss the
defendant’s third-party complaint for lack of subject
matter jurisdiction. On January 15, 2015, the District
Court granted USPS’ motion to dismiss, thereby termi-
nating USPS as a party to the matter.
On October 15, 2015, the defendant filed a motion for
summary judgment as to both counts of the plaintiffs’
amended complaint. The plaintiffs objected to the
motion only insofar as the defendant was moving for
summary judgment on their private nuisance claim. On
June 1, 2016, the District Court issued its ruling granting
the defendant’s motion for summary judgment in toto.
judgment to the United States Court of Appeals for the
Second Circuit.
On October 11, 2017, the Second Circuit vacated the
District Court’s summary judgment on the ground that
the District Court, having properly dismissed the defen-
dant’s third-party complaint against USPS for lack of
subject matter jurisdiction, lacked supplemental juris-
diction over the plaintiffs’ state law claims. See Cohen
v. Postal Holdings, LLC, 873 F.3d 394, 404 (2d Cir.
2017). The Second Circuit remanded the matter to the
District Court to remand the plaintiffs’ state law claims
to the Superior Court for further proceedings consistent
with its opinion. Id. On August 2, 2018, the District
Court remanded the matter to the Superior Court.
On November 9, 2018, the plaintiffs filed a revised
two count complaint, which became their operative
complaint, sounding in private nuisance and negligence.
In support of both counts, the plaintiffs alleged, inter
alia, that, at all relevant times, the property was in a
dangerous condition3 that the defendant had failed to
prevent or to abate, thereby causing them harm while
they had been abutting property owners.4 On November
13, 2018, the defendant filed an answer denying the
material allegations of the operative complaint and
asserting several special defenses.
On December 14, 2018, the defendant filed a motion
for summary judgment, accompanied by a supporting
memorandum of law and exhibits, as to both counts of
the plaintiffs’ operative complaint. On January 28, 2019,
the plaintiffs filed a memorandum of law in opposition
to the motion for summary judgment with appended
exhibits. On February 19, 2019, the defendant filed a
reply brief with appended exhibits.
On March 28, 2019, after having heard argument on
March 25, 2019, the trial court, Krumeich, J., issued
a memorandum of decision granting the defendant’s
motion for summary judgment. On April 17, 2019, the
plaintiffs filed a motion to reargue, which the court
denied on April 22, 2019. This appeal followed. Addi-
tional facts and procedural history will be set forth
as necessary.
Before turning to the plaintiffs’ claims on appeal, we
set forth the relevant standard of review. ‘‘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. . . . In decid-
ing a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him [or her]
to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court’s decision to grant [a] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Rutter v. Janis, 334 Conn. 722, 729, 224 A.3d 525 (2020).
I
The plaintiffs first claim that the trial court improp-
erly granted the defendant’s motion for summary judg-
ment as to their negligence claim on the ground that
there was no genuine issue of material fact that the
defendant did not exert control over the property and,
therefore, did not owe a duty of care to the plaintiffs.
We disagree.
‘‘In a negligence action, the plaintiff must meet all of
the essential elements of the tort in order to prevail.
These elements are: duty; breach of that duty; causation;
and actual injury. . . . The general rule regarding
premises liability in the landlord-tenant context is that
landlords owe a duty of reasonable care as to those
parts of the property over which they have retained
control. . . . [L]andlords [however] generally [do] not
have a duty to keep in repair any portion of the premises
leased to and in the exclusive possession and control
of the tenant.’’ (Internal quotation marks omitted.) Fior-
elli v. Gorsky, 120 Conn. App. 298, 308, 991 A.2d 1105,
cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). ‘‘[L]iabil-
ity for injuries caused by defective premises . . . does
not depend on who holds legal title, but rather on who
has possession and control of the property. . . . Thus,
the dispositive issue in deciding whether a duty exists
is whether the [defendant] has any right to possession
and control of the property.’’ (Internal quotation marks
omitted.) Millette v. Connecticut Post Ltd. Partnership,
143 Conn. App. 62, 70, 70 A.3d 126 (2013).
‘‘Retention of control is essentially a matter of inten-
tion to be determined in the light of all the significant
circumstances. . . . The word control has no legal or
technical meaning distinct from that given in its popular
acceptation . . . and refers to the power or authority
to manage, superintend, direct or oversee. . . . Unless
it is definitely expressed in the lease, the circumstances
of the particular case determine whether the lessor has
reserved control of the premises or whether they were
under the exclusive dominion of the tenant, and it
becomes a question of fact and is a matter of intention
in the light of all the significant and attendant facts
which bear on the issue. . . . Although questions of
fact ordinarily are not decided on summary judgment,
if the issue of control is expressed definitively in the
lease, it becomes, in effect, a question of law.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Fiorelli v. Gorsky, supra, 120 Conn. App.
308–309.
The following additional facts and procedural history
are relevant to our disposition of the plaintiffs’ claim.
In their operative complaint, the plaintiffs alleged that
the defendant was liable for negligence because it failed
to prevent or to abate the dangerous condition of the
property. More specifically, the plaintiffs alleged that
the defendant failed either to enforce its purported right
under the ground lease to require USPS to maintain the
property or to take other action to prevent or to abate
the dangerous condition thereof.
In its memorandum of law in support of its motion
for summary judgment, the defendant claimed that
there was no genuine issue of material fact that it did
not have possession or control of the property. The
defendant asserted that paragraph 9 of the ground lease
contained clear and unambiguous language demising
complete possession and control of the property, along
with the responsibility for the maintenance thereof, to
USPS. Without possession or control of the property,
the defendant posited, it did not owe a duty of care to
the plaintiffs, and, therefore, it was not liable for neg-
ligence.
In their memorandum of law in opposition to the
defendant’s motion for summary judgment, the plain-
tiffs argued that there existed a genuine issue of mate-
rial fact as to whether the defendant exercised control
over the property. First, the plaintiffs contended that
the terms of the ground lease could be construed to
bestow upon the defendant a right, obligation, and duty
to prevent or to abate the dangerous condition of the
property or to require USPS to maintain the property,
and, thus, there existed an ambiguity as to whether
the defendant exerted control over the property. The
plaintiffs relied on the fact that the portion of paragraph
9 of the ground lease providing that USPS, ‘‘at its own
cost and expense, shall construct and maintain all build-
ings, structures and improvements on the demised
premises’’ was conditioned by the qualifying clause
‘‘[e]xcept as otherwise provided herein.’’ The plaintiffs
argued that the indemnification language set forth in
paragraph 8 of the ground lease signified that the parties
contemplated situations in which USPS might engage
in negligent conduct in relation to the property that
would require the defendant to take action to cure
USPS’ negligence, provided that USPS indemnify the
defendant, thus constituting an exception to USPS’ right
and obligation regarding construction and maintenance
set forth in paragraph 9. Second, the plaintiffs con-
tended that, notwithstanding the terms of the ground
lease, they submitted evidence demonstrating that the
defendant had exercised de facto control over the prop-
erty, for example, by paying property taxes that USPS
later reimbursed.
In its reply brief, the defendant countered that (1)
the indemnification language set forth in paragraph 8
did not provide the defendant with a right to order
USPS to maintain the property or alter the fact that
the defendant retained no control or possession of the
property, and (2) evidence of the defendant purportedly
exercising de facto control over the property was imma-
terial because the ground lease contained unequivocal
terms providing that the defendant had no control or
possession of, and thus no responsibility to maintain,
the property.
In granting the defendant’s motion for summary judg-
ment as to the plaintiffs’ negligence claim, the trial court
first concluded that the ground lease provided that
USPS, rather than the defendant, was in possession
and control of the property. The court determined that
paragraph 9 of the ground lease gave USPS the right to
construct on and to maintain the property. Additionally,
the court determined that nowhere in the ground lease
did the defendant reserve the right to perform mainte-
nance or repairs that USPS failed to undertake, and
the court rejected the plaintiffs’ proposition that the
indemnification language set forth in paragraph 8 of
the ground lease granted such a right. The court then
addressed and rejected the plaintiffs’ contention that
the evidence submitted by them demonstrated that the
defendant maintained de facto control of the property.
In sum, the court concluded: ‘‘[The] [p]laintiffs have
failed to submit evidential facts that would raise an
issue of fact concerning the [defendant’s] control over
the property, and thus have provided no basis for recog-
nition of a duty by the [defendant] to maintain or repair
the property to abate the conditions of which [the]
plaintiffs have complained. Without a duty to act to
prevent harm to the plaintiffs, there is no basis for
claiming the [defendant’s] failure to act was unrea-
sonable.’’
On appeal, the plaintiffs assert that the court improp-
erly determined that there was no genuine issue of
material fact that the defendant did not exert control
over the property. Specifically, the plaintiffs claim that
(1) the ground lease was ambiguous as to whether the
defendant had control of the property, and (2) in the
alternative, notwithstanding the terms of the ground
lease, evidence that they submitted in opposition to the
defendant’s motion for summary judgment demon-
strated that the defendant exercised de facto control
over the property. For the reasons that follow, these
claims are unavailing.
A
We first turn to the plaintiffs’ claim that the ground
lease contained ‘‘clearly inapposite and contradictory
terms pertaining to issues of control’’ of the property,
and, therefore, the trial court improperly determined
that the terms of the ground lease clearly and unambigu-
ously established that the defendant did not exert con-
trol over the property. The plaintiffs observe that para-
graph 9 of the ground lease provided USPS with the right
and obligation to ‘‘construct and maintain all buildings,
structures and improvements’’ on the property
‘‘[e]xcept as otherwise provided’’ in the ground lease.
The plaintiffs contend that the indemnification clause
set forth in paragraph 8 of the ground lease signaled
that ‘‘the signatories of the [g]round [l]ease manifestly
acknowledged that there could be occasions when . . .
USPS might be negligent in its leasehold of the premises
and that [the defendant] would cure such negligence,
so long as [the defendant] was indemnified by USPS.’’
Thus, the plaintiffs argue, paragraph 8 could be con-
strued as providing the defendant with ‘‘the right, obli-
gation, and duty to prevent and [to] abate conditions
on its property that might be dangerous or interfere
with the rights of others, and to enforce the [g]round
[l]ease to prevent such conditions,’’ thereby constitut-
ing an exception to USPS’ right and obligation to build
on and to maintain the property as described in para-
graph 9. We are not persuaded.
‘‘In construing a written lease, which constitutes a
written contract, three elementary principles must be
kept constantly in mind: (1) The intention of the parties
is controlling and must be gathered from the language
of the lease in the light of the circumstances sur-
rounding the parties at the execution of the instrument;
(2) the language must be given its ordinary meaning
unless a technical or special meaning is clearly
intended; (3) the lease must be construed as a whole
and in such a manner as to give effect to every provision,
if reasonably possible. . . . A determination of con-
tractual intent ordinarily presents a question of fact for
the ultimate fact finder, although where the language
is clear and unambiguous, it becomes a question of law
for the court.’’ (Citations omitted; internal quotation
marks omitted.) Peter-Michael, Inc. v. Sea Shell Associ-
ates, 244 Conn. 269, 275–76, 709 A.2d 558 (1998). ‘‘Fur-
thermore, when the language of the [lease] is clear and
unambiguous, [it] is to be given effect according to its
terms. A court will not torture words to import ambigu-
ity [when] the ordinary meaning leaves no room for
ambiguity . . . . Similarly, any ambiguity in a [lease]
must emanate from the language used in the [lease]
rather than from one party’s subjective perception of
[its] terms.’’ (Internal quotation marks omitted.) Bristol
v. Ocean State Job Lot Stores of Connecticut, Inc., 284
Conn. 1, 8, 931 A.2d 837 (2007).
Mindful of the foregoing principles, we conclude that
the ground lease, in clear and unambiguous terms,
demised full control of the property to USPS and
divested any control of the property from the defendant.
The ground lease contained no express language per-
mitting the defendant to enter the property and to per-
form maintenance or repairs, or to demand that USPS
maintain the property. By comparison, paragraph 9 of
the ground lease explicitly provided that USPS, ‘‘at its
own cost and expense, shall construct and maintain all
buildings, structures and improvements on the demised
premises,’’ subject to the qualifying clause stating
‘‘[e]xcept as otherwise provided’’ in the ground lease,
and that ‘‘[USPS’] responsibility for maintenance shall
be fulfilled at such time and in such manner as [USPS]
considers necessary.’’ We reject the plaintiffs’ con-
tention that the qualifying clause of paragraph 9, when
read in conjunction with the indemnification language
set forth in paragraph 8, raised an ambiguity as to
whether the defendant maintained control of the prop-
erty. We discern no logical connection between the
indemnification language of paragraph 8 and the qualify-
ing clause contained in paragraph 9. As the trial court
aptly summarized in its memorandum of decision: ‘‘A
tenant’s failure to maintain the property may give rise
to a damages remedy, indemnification or even to termi-
nation of the tenancy but those remedies are not the
functional equivalent of lease terms requiring a tenant
to make repairs or reserving to the landlord the right
to step in to make repairs required to maintain the
property.’’5
Moreover, our rejection of the plaintiffs’ interpreta-
tion of the ground lease does not render the qualifying
clause of paragraph 9 meaningless. For example, para-
graph 21 of the ground lease provided: ‘‘It is understood
and agreed that as part of the consideration, [USPS]
has the right to raze any and all existing structures or
improvements, including utilities and lines which now
exist on the demised premises and that [USPS] shall
not be obligated to rebuild, restore nor make any further
[remuneration] for such razing, removal or alteration
of such buildings, structures or improvements.’’6 Para-
graph 21 constituted an exception to USPS’ right and
obligation to construct and to maintain ‘‘all buildings,
structures, and improvements’’ on the property.7
In sum, we conclude that the trial court properly
determined that, pursuant to the clear and unambiguous
terms of the ground lease, the defendant did not main-
tain control of the property and, as a result, did not
owe a duty of care to the plaintiffs. Thus, the plaintiffs’
claim fails.
B
We next turn to the plaintiffs’ alternative claim that,
notwithstanding the terms of the ground lease, the
plaintiffs submitted evidence demonstrating that the
defendant exerted de facto control over the property.
The defendant argues that the ground lease, in unequiv-
ocal terms, expressed that the defendant did not main-
tain control of the property, and, therefore, it is unnec-
essary to consider whether the defendant exercised de
facto control of the property. We agree with the
defendant.
In a premises liability case, it is proper for a court
to consider extrinsic evidence to determine whether a
lessor reserved control over leased premises unless the
issue of control is definitely expressed in a lease. As
our Supreme Court explained in LaFlamme v.
Dallessio, 261 Conn. 247, 802 A.2d 63 (2002), ‘‘[t]he
issue of whether the landlord retained control over a
specific area of the premises is essentially a matter of
intention to be determined in the light of all the signifi-
cant circumstances. . . . Thus, [u]nless it is definitely
expressed in the lease, the circumstances of the particu-
lar case determine whether the lessor has reserved con-
trol of the premises or whether they were under the
exclusive dominion of the tenant, and it becomes a
question of fact and is a matter of intention in the light
of all the significant and attendant facts which bear on
the issue. . . . In other words, if the terms of control
are not express between the parties, the question of
who retains control over a specific part of the property
is an issue of fact and a matter of intent that can be
determined only in light of all the relevant circum-
stances.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 257; see also Fiorelli v.
Gorsky, supra, 120 Conn. App. 308–309 (‘‘Unless it is
definitely expressed in the lease, the circumstances of
the particular case determine whether the lessor has
reserved control of the premises or whether they were
under the exclusive dominion of the tenant, and it
becomes a question of fact and is a matter of intention
in the light of all the significant and attendant facts
which bear on the issue. . . . Although questions of
fact ordinarily are not decided on summary judgment,
if the issue of control is expressed definitively in the
lease, it becomes, in effect, a question of law.’’ (Citation
omitted; emphasis altered; internal quotation marks
omitted.)).8
As we concluded in part I A of this opinion, the ground
lease clearly and unambiguously provided that USPS,
rather than the defendant, maintained control of the
property. Therefore, we need not consider whether the
defendant exercised de facto control over the property.9
II
The plaintiffs next claim that the trial court improp-
erly granted the defendant’s motion for summary judg-
ment as to their private nuisance claim on the ground
that there was no genuine issue of material fact that
the defendant did not interfere with the plaintiffs’ use
and enjoyment of their property. We disagree.
‘‘A private nuisance is a nontrespassory invasion of
another’s interest in the private use and enjoyment of
land. . . . The law of private nuisance springs from
the general principle that [i]t is the duty of every person
to make a reasonable use of his [or her] own property
so as to occasion no unnecessary damage or annoyance
to his [or her] neighbor. . . . The essence of a private
nuisance is an interference with the use and enjoyment
of land.’’ (Citations omitted; internal quotation marks
omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788
A.2d 496 (2002). ‘‘[I]n order to recover damages in a
common-law private nuisance cause of action, a plain-
tiff must show that the defendant’s conduct was the
proximate cause of an unreasonable interference with
the plaintiff’s use and enjoyment of his or her property.
The interference may be either intentional . . . or the
result of the defendant’s negligence.’’ (Citation omit-
ted.) Id., 361. Our Supreme Court has explained that
the requirements of a private nuisance claim ‘‘relate to
the land subject to the nuisance and to the nature of
the interference, not to whether the conduct giving rise
to the interference was connected with the defendant’s
ownership or control of any land.’’ Ugrin v. Cheshire,
307 Conn. 364, 377, 54 A.3d 532 (2012).
The following additional facts and procedural history
are relevant to our disposition of the plaintiffs’ claim.
In their operative complaint, the plaintiffs alleged that
the defendant was liable for private nuisance because
(1) at the time that it acquired its interest in the ground
lease, the defendant was aware that the property was
in a dangerous condition, and (2) the defendant failed
to enforce its purported right under the ground lease
to require USPS to maintain the property or to take
other action to prevent or to abate the dangerous condi-
tion thereof.
In its motion for summary judgment, the defendant
asserted that there was no genuine issue of material
fact that it did not engage in conduct that caused the
dangerous condition of the property, the maintenance
of which was the sole responsibility of USPS, and, there-
fore, it could not be held liable for any claimed interfer-
ence with the plaintiffs’ use and enjoyment of their
property.
In their memorandum of law in opposition to the
defendant’s motion for summary judgment, the plain-
tiffs argued that the defendant unreasonably interfered
with their enjoyment and use of their property by failing
to enforce its purported right under the ground lease
to require USPS to maintain the property or to take
other action to remediate the dangerous condition
thereof, despite knowing of said condition when it
assumed the ground lease. In its reply brief, the defen-
dant reiterated that the ground lease conferred on USPS
the sole right and obligation to maintain the property,
such that it was USPS’ conduct in failing to maintain
the property that caused any claimed interference with
the plaintiffs’ use and enjoyment of their property.
In granting the defendant’s motion for summary judg-
ment as to the plaintiffs’ private nuisance claim, the trial
court concluded that the plaintiffs ‘‘failed to produce
evidence of conduct by the [defendant] that interfered
with [the] plaintiffs’ use and enjoyment of their prop-
erty. . . . [The defendant] had no legal duty to main-
tain or repair the [property] or to force USPS to do so.
. . . Without such [a] duty, the [defendant’s] failure to
act cannot be characterized as negligent or intentional
interference with [the] plaintiffs’ use and enjoyment of
their property.’’ (Footnotes omitted.)
On appeal, the plaintiffs contend that the trial court
improperly concluded that there was no genuine issue
of material fact that the defendant did not interfere
with their use and enjoyment of their property. More
specifically, the plaintiffs assert that the defendant
knew that the property was in a dangerous condition
when it acquired its interest in the ground lease, but
nevertheless failed to enforce its purported right under
the ground lease to require USPS to maintain the prop-
erty or to remediate the property itself and then seek
reimbursement from USPS. This claim is unavailing.
As we concluded in part I A of this opinion, the ground
lease, in clear and unambiguous terms, demised full
control of the property to USPS. The ground lease fur-
ther provided that USPS’ ‘‘responsibility for mainte-
nance shall be fulfilled at such time and in such manner
as [USPS] considers necessary.’’ The ground lease pro-
vided the defendant with no right to enter the property
in order to perform maintenance or repairs or to
demand that USPS maintain the property. Under these
circumstances, the defendant’s inaction with regard to
the condition of the property cannot be characterized
as causing a negligent or intentional interference with
the plaintiffs’ use and enjoyment of their property.10
Accordingly, we conclude that the trial court properly
granted the defendant’s motion for summary judgment
as to the plaintiffs’ private nuisance claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its appellate brief, the defendant argues that we should disregard
(1) certain documents included in the appendix to the plaintiffs’ principal
appellate brief that are not part of the trial court record, and (2) certain
‘‘unsupported factual assertions’’ in the plaintiffs’ principal appellate brief.
The purportedly improper material cited by the defendant has no bearing
on our resolution of the plaintiffs’ claims on appeal. Therefore, we need
not further address the defendant’s argument.
2
The plaintiffs did not allege any liability on the part of the defendant
with respect to 26 Catoonah Street, on which USPS operated a postal facility.
3
In their original complaint, the plaintiffs alleged that an abandoned struc-
ture stood on the property. In their operative complaint, the plaintiffs alleged
that the abandoned structure had been razed sometime after June 27, 2014.
The plaintiffs further alleged in their operative complaint, inter alia, that
the condition of the property attracted unsupervised minors and adults,
who trespassed, loitered, and possibly engaged in illicit activities on the
property, as well as dangerous wildlife.
4
The record reflects that the plaintiffs purchased their abutting property
in 2001 and sold it in 2014.
5
The plaintiffs assert that, during argument before the Second Circuit on
the appeal from the District Court’s summary judgment rendered in favor
of the defendant, one of the sitting judges commented that the language of
paragraph 9 was ambiguous regarding the extent to which USPS had control
of the property. The plaintiffs contend that the comments illustrate that
reasonable minds can differ as to whether the language of the ground lease
was ambiguous regarding the issue of control of the property. In its decision
disposing of the appeal, however, the Second Circuit did not reach the merits
of the plaintiffs’ claims; instead, it disposed of the appeal on jurisdictional
grounds by concluding that the District Court lacked supplemental jurisdic-
tion over the plaintiffs’ state law claims. See Cohen v. Postal Holdings, LLC,
supra, 873 F.3d 404. We decline the plaintiffs’ invitation to consider any
statements made during argument by the judges of the Second Circuit to
have precedential or evidential value germane to our analysis.
6
Paragraph 21 of the ground lease was unaltered by the 1983 and 2006
amendments to the ground lease.
7
We also observe that the 1983 amendment to the ground lease provided,
inter alia, that USPS was prohibited from constructing any fences or barriers
on the leased premises other than a chain link fence described in the amend-
ment. The 2006 amendment to the ground lease did not alter the foregoing
provision, which constituted another exception to USPS’ right and obligation
with respect to construction and maintenance set forth in paragraph 9 of
the ground lease.
8
The plaintiffs cite Martel v. Malone, 138 Conn. 385, 85 A.2d 246 (1951),
for the proposition that ‘‘even where there is a written lease [that] lodges
full control in the lessee, liability can attach to the lessor if, in fact, the lessor
exercised actual control.’’ The plaintiffs’ reliance on Martel is misguided.
In Martel, a jury returned a verdict against a lessor for injuries sustained
by a third party when he fell down a stairway attached to the outside of a
building owned by the lessor that led to a room leased to a lessee. Martel
v. Malone, supra, 138 Conn. 387–88. At the time of the third party’s injury,
the lessor and the lessee maintained an oral month-to-month lease. Id., 388.
The trial court set aside the verdict on the basis that no evidence existed
to warrant a finding that the lessor retained control over the stairway. Id.,
387. On appeal, our Supreme Court affirmed the trial court’s decision. Id.,
392. In doing so, the court concluded that, without an express or implied
agreement to the contrary, control of the stairway passed to the lessee by
virtue of the lease. Id., 390. The court proceeded to determine that (1) there
was no evidence of an express agreement providing that the lessor retained
control of the stairway, and (2) there was no evidence demonstrating the
existence of an implied agreement providing that the lessor retained control
over the stairway. Id., 390–92.
Our Supreme Court subsequently cited Martel for the proposition that
extrinsic evidence was relevant to the issue of control over leased premises
when a written lease did not definitely or expressly resolve the issue. See
Panaroni v. Johnson, 158 Conn. 92, 99, 256 A.2d 246 (1969) (‘‘The written
lease read as a whole cannot be said to definitely or expressly resolve the
issue of control. Thus the actual use of the stairway, the circumstances
attending its use, and the evidence as to repairs become relevant to the
issue of actual control. Martel v. Malone, [supra, 138 Conn. 391].’’). Thus,
Martel aligns with the case law establishing that extrinsic evidence concern-
ing the issue of control of leased premises may be considered unless the
issue is definitely expressed in a lease.
9
In granting the defendant’s motion for summary judgment as to the
plaintiffs’ negligence claim, in addition to concluding that the defendant did
not exert control over the property under the terms of the ground lease,
the trial court rejected the merits of the plaintiffs’ claim that there was
evidence demonstrating that the defendant exercised de facto control over
the property. Having concluded that the ground lease unequivocally resolved
the issue of control, it was unnecessary for the trial court to consider the
merits of the plaintiffs’ claim regarding de facto control.
10
The plaintiffs emphasize that the defendant leased the property to USPS
with knowledge that the property was in a dilapidated state. The plaintiffs
rely on appellate decisions reflecting that a lessor may be held liable for a
nuisance if the nuisance existed when the lease was executed or renewed.
See, e.g., Bergman v. Jacob, 125 Conn. 486, 489–90, 7 A.2d 219 (1939) (lessor
not liable for public nuisance caused by condition on premises created by
lessee after execution of lease); Swift & Co. v. Peoples Coal & Oil Co., 121
Conn. 579, 592, 186 A. 629 (1936) (‘‘Ordinarily a landlord is not liable for a
nuisance created upon premises he [or she] has leased where that nuisance
did not exist when they were leased or was not a result reasonably to be
anticipated from their use for the purpose and in the manner intended. . . .
The reason for this rule is that, having leased the premises, the landlord
ordinarily is without power to control their use. But if a nuisance arises
from the use of the premises during the period of the lease, he [or she] has
it within his [or her] power to abate that nuisance at the expiration of the
period for which they were rented and if, knowing that it exists he [or she]
takes no steps to this end but renews the lease, liability then attaches.’’
(Citations omitted.)); Calway v. William Schaal & Son, Inc., 113 Conn. 586,
592, 155 A. 813 (1931) (‘‘it is settled law that where an owner leases premises
upon which there is a nuisance which will continue if they are used for the
purpose and in the manner intended he [or she] is liable for damages resulting
from that nuisance’’)
In the present case, the plaintiffs did not allege that the property was in
a dangerous condition when the ground lease was executed in 1982. More-
over, the defendant did not become the sole lessor of the property until
2011, well after the ground lease had been executed. In addition, the plaintiffs
have not identified any evidence in the record reflecting that a renewal of
the ground lease occurred between 2011, when the defendant became the
sole lessor of the property, and 2014, when the plaintiffs sold their abutting
property. Thus, the present case is distinguishable from those situations
involving lessors who executed or renewed leases notwithstanding the pres-
ence of conditions on the leased premises that constituted nuisances.