Pollansky v. Pollansky
Pollansky v. Pollansky
Opinion of the Court
Opinion
The defendants, Steven Poliansky, Darby Poliansky, Kyle Poliansky, Anna P. Poliansky, Skyland Properties, LLC, and Poliansky Construction, LLC, appeal from the trial court’s judgment of possession rendered in favor of the plaintiff, Anna T. Poliansky. The defendants claim that (1) the court erred in finding that the notice to quit pursuant to General Statutes § 47a-23 (a) (3) was valid, (2) the notice to quit was invalid specifically as to Kyle Poliansky and Anna P. Poliansky, the plaintiffs grandchildren, and (3) the defendants were prejudiced by several of the court’s evidentiary rulings. We affirm the judgment of the trial court.
The following facts, as found by the trial court, Cobb, J., and procedural history are relevant to our resolution of this appeal. In the 1960s, the plaintiff and her late husband, Andrew Poliansky, jointly purchased three
When Andrew Poliansky died in July, 2010, the plaintiff became the sole owner of the property. The plaintiff, who was in her eighties at the time of trial, wished to sell or to rent the property to subsidize her income. The plaintiff asked the defendants to pay rent for the use of the property for their businesses, but the parties had not been able to come to any agreement on rent. As a result, the plaintiff asked the defendants to vacate the property so that she could sell or rent it to obtain additional income, but the defendants refused to do so.
The plaintiff brought a summary process action against the defendants seeking immediate possession of the property. The plaintiff claimed that, although the defendants once had the right and privilege to occupy the property, that right or privilege had terminated. The defendants alleged two special defenses: that Andrew Poliansky had granted one or more of the defendants
The court found that the plaintiff proved her summary process action: that she was the owner of the property, that she continued to permit the defendants to operate a business on the property after her husband’s death, that she terminated her permission when she asked the defendants to vacate the premises and served them with a valid notice to quit, and that the defendants remained in possession. The court found that the defendants had not proven their special defenses. The court entered a judgment of immediate possession in favor of the plaintiff. This appeal followed.
“Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over then-terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Internal quotation marks omitted.) Sullivan v. Lazzari, 135 Conn. App. 831, 835, 43 A.3d 750, cert. denied, 305 Conn. 925, 47 A.3d 884 (2012).
I
The defendants first claim that the court erred in finding that the notice to quit pursuant to § 47a-23 (a) (3) was valid. We disagree.
We begin by setting forth the “standard of reviewing challenges to the trial court’s subject matter jurisdiction in a summary process action on the basis of a defect in the notice to quit. Before the [trial] court can entertain
On April 28, 2011, the plaintiff served on the defendants a notice to quit
Section 47a-23 provides in relevant part: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land [or] building . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”
The defendants argue that the use of the present perfect tense in the phrase “has terminated” in § 47a-23 (a) (3) means that, in order for the notice to quit to
The defendants’ argument is based on the legislature’s usage of the present perfect tense in the phrase “has terminated” in § 47a-23 (a) (3).
Although § 47a-23 (a) (3) is unambiguous in the present context, an examination of the statute as a whole further buttresses the conclusion that the notice to quit can occur simultaneously with the termination of the right or privilege to occupy. Section 47a-23 (a) (1) provides that when a lessor desires to obtain possession of a property and “when a rental agreement or lease of such property • • • terminates” for any of several enumerated reasons, the lessor “shall give notice to each lessee ... to quit possession or occupancy. . . .” Under this subsection, “[sjervice of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease.” (Internal quotation marks omitted.) Centrix Management Co., LLC v. Valencia, 132 Conn. App. 582, 587, 33 A.3d 802 (2011). If a notice to quit can be sufficient to terminate a lease, it follows, a fortiori, that a notice to quit can be sufficient under (a) (3) where an occupant has no continuing right to occupy and an owner can decide to terminate a tenancy at any time. Section 47a-23 (a) (2), which was added at the same time as (a) (3),
II
The defendants Anna P. Poliansky and Kyle Polian-sky, grandchildren of the plaintiff, claim that the court erred in finding that the notice to quit given to them and the grounds on which it was based were valid. We disagree.
Our review of the court’s ruling on the validity of the notice to quit is plenary. See Bayer v. Showmotion, Inc., supra, 292 Conn. 388.
The court rejected the defendants’ second special defense that the notice to quit was invalid as to Anna P. Poliansky and Kyle Poliansky. The court determined that the notice to quit, which was served on April 28, 2011, and which cited the grounds in § 47a-23 (a) (3) as to all defendants, was valid. More importantly, the
The relevant provisions of § 47a-23 are as follows: “(a) When . . . the owner’s . . . legal representative . . . desires to obtain possession or occupancy of any land or building . . . and ... (2) when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises; or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner’s ... legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy of such land [or] building . . . before the time specified in the notice for the . . . occupant to quit possession or occupancy.”
Anna P. Poliansky argues that prior to her turning eighteen she would not have been separately named on the notice to quit and, because she was served with a notice to quit on the day of her eighteenth birthday, she never had a chance to obtain a right or privilege to occupy the premises; her occupancy is simply that of a person who turned eighteen, not a tenant. She argues that because she never had a privilege to occupy the premises, the proper ground for the notice to quit would be § 47a-23 (a) (2).
Anna P. Poliansky is correct in that it is not necessary to include the names of minor children in a notice to quit. Sullivan v. Lazzari, supra, 135 Conn. App. 841; see also General Statutes § 47a-26h (a) (1) (summary
Kyle Poliansky argues that, although he was not a minor when served with the notice to quit dated April 27, 2011, “he was not a party to the dismissed prior action, he never received any written or verbal communication by the plaintiff that she wanted him gone, and he too received his first notice with the April 27, 2011 notice to quit.” Apparently, he argues that had he been a party to a prior action, he would have known that permission had been terminated.
Whether Kyle Poliansky was a party to a prior dismissed summary process action does not affect the
We conclude that the court properly determined that the notice to quit dated April 27, 2011, and served April 28,2011, was valid as to Anna P. Poliansky and Kyle Pol-iansky.
Ill
The defendants last claim that “they were treated far differently at trial than the plaintiff was treated at trial. Evidence that the plaintiff was allowed to present was not allowed to be rebutted by the defendant. This created a substantially uneven playing field for the defendants.” We disagree.
“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 452, 927 A.2d 843 (2007).
The defendants argue that the court erred in permitting the plaintiff to present evidence, over the defendants’ objection, about personal property located on the premises and not allowing the defendants to introduce rebuttal evidence.
The plaintiff testified that she did not want equipment, such as bulldozers and trucks, owned by her late husband, to be removed from the property. The plaintiffs attorney stated that evidence of personal property was relevant because the plaintiff was requesting an order to restrain the defendants’ removal of these items. The court overruled the objection and stated “you can argue in your brief why it shouldn’t be relevant to these proceedings.” Without objection, the plaintiffs counsel submitted into evidence a list of equipment the plaintiff did not want removed from the property. When Steven Poliansky testified on direct examination regarding his maintenance and financial contributions of specific items on the list, the plaintiffs counsel objected. The court stated that the plaintiff brought a summary process action and “I don’t know why we’re spending all our time on this because I’m not going to decide in this case who gets that property. I’m only going to decide who gets to stay and who’s going. ... I didn’t know what it was when I heard it the first time. Does anyone disagree that I’m not going to decide who gets the property in the lawsuit?” Counsel for both parties stated that they did not disagree.
In permitting the plaintiff to admit evidence of personal property and instructing defendants’ counsel to include arguments regarding the relevancy of this evidence in the defendants’ brief, the court, in essence, was deferring its ruling on the relevancy of such evidence. The court later indicated that it deemed such evidence irrelevant and stated that it would not decide
B
The defendants next seem to argue that the following finding made by the court was clearly erroneous: after the death of the plaintiffs husband “and without the plaintiffs permission, the defendants changed the locks on the property and the plaintiff had difficulty entering her property.” The defendants highlight Steven Polian-sky’s testimony that the locks on the gate to the property were changed while Andrew Poliansky was alive. The defendants state in their brief that the lock issue “may very well be irrelevant to a summary process action.”
This finding was not clearly erroneous. See Zatakia v. Ecoair Corp., 128 Conn. App. 362, 370, 18 A.3d 604 (findings of fact reviewed under clearly erroneous standard), cert. denied, 301 Conn. 936, 23 A.3d 729 (2011). The court was free to discredit Steven Poliansky’s testimony and credit the plaintiffs testimony that a new lock had been put on the gate after her husband passed away. United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002) (trier of fact sole arbiter of credibility). That notwithstanding, as the defendants aptly point out, the court’s finding regarding the lock was not relevant to its judgment. Accordingly, the propriety of the court’s finding in that regard is immaterial.
C
On cross-examination of Steven Poliansky, the court permitted plaintiffs counsel, over an objection by
The defendants argue that they were prejudiced by the court’s admission of a partial deposition transcript “without the benefit of being able to cross-examine on other points in the transcript. . . . Steven could not answer questions without the full transcript. In the court’s decision the testimony of Steven is discredited on this basis.” (Citation omitted.)
The court found that the defendants failed to prove their special defense that they had an ownership interest in the property granted to Steven Poliansky by Andrew Poliansky. The court noted that the defendants did not produce at trial any written documents, including testamentary documents, deeds or contracts granting Steven Poliansky or any of the defendants an interest in the property. The court stated that the written documents introduced at trial reflected that as co-owner of the property, upon the death of Andrew Pol-iansky, the property would be the plaintiffs, absent any countervailing agreement or gift. The court stated that regardless of whether oral statements could be sufficient to create an ownership interest in the property, it did not find credible Steven Poliansky’s testimony that his father orally promised to leave the property to him. The court credited the plaintiffs testimony that she was not aware her husband made any such promises; the court further noted that as co-owner of the
The court did not abuse its discretion in admitting the partial deposition transcript for impeachment purposes. See Conn. Code Evid. § 8-8 (“[w]hen hearsay has been admitted in evidence, the credibility of the declarant may be impeached, and if impeached may be supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness”). If the defendants wished to have the full deposition transcript admitted into evidence, they could have done so.
D
Over the defendants’ objection, the court permitted the plaintiff to introduce testimony of an expert appraiser. The court, Cobb, J., permitted the plaintiffs expert to testify based on the plaintiffs representation that the court, Mullarkey, J., verbally ordered the plaintiff to present an expert appraisal in connection with a motion for use and occupancy payments. The court, Cobb, J., at trial, reasoned that the defendants had notice of the witness because of Judge Mullarkey’s order and further stated that it would give the defendants time to bring in their own appraiser, if they wished to do so. The plaintiff introduced at trial the expert’s report on the value of the property and elicited testimony from the expert regarding the fair market rental value of the property. The defendants argue that the court erred in admitting the expert testimony because the plaintiff did not provide notice of her expert under Practice Book § 13-4 and because the testimony was prejudicial. The defendants argue that regardless of Judge Mullarkey’s prior order and regardless of the fact
Because the court did not decide the issue of use and occupancy payments, any testimony regarding the value of the land was immaterial and, accordingly, did not harm the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
The notice to quit was signed by the plaintiffs attorney.
The defendants also cite Bershtein Enterprises, LLC v. Jim Powers, Superior Court, judicial district of New Haven, Housing Session, Docket No. 0212-73629 (November 1, 2004), in support of their argument that § 47 a-23 (a) (3) requires that the right or privilege to occupy must have been terminated prior to the delivery of the notice to quit. First, Bershtein Enterprises, LLC, is not binding authority and second, it is factually distinguishable on the basis that the court found that the defendant in that case had a continuing right or privilege to use the premises on the basis of having been granted a life use of the premises. That right could not be arbitrarily terminated by any notice, including a notice to quit, in contradistinction to a privilege granted by the benevolence of the owner.
Somewhat fancifully, perhaps, the owner necessarily has made the determination to terminate the privilege prior to serving a notice to quit.
Originally, the remedy of summary process applied only in cases involving a lease that had been terminated. Sullivan v. Lazzari, supra, 135 Conn. App. 838. The Public Acts of 1957, No. 291, § 1, amended the statute now
General Statutes § 47a-23 (a) (2) provides that when an owner desires to obtain possession of a premises and “when such premises, or any part thereof, is occupied by one who never had a right or privilege to occupy such premises . . . such owner’s . . . legal representative . . . shall give notice to each . . . occupant to quit possession or occupancy” of such premises.
Under the defendants’ grammatical construction, a notice to quit presumably would be valid if some sort of additional notice had been handed to a defendant a moment before service of the notice to quit. We do not presume such bizarre results.
According to the undisputed evidence submitted at trial, Anna P. Polian-sky turned eighteen on April 27, 2011. Both parties agree to this date on appeal.
To the extent that this permission was given to Anna P. Poliansky as a minor, that permission is not negated simply by virtue of her having turned eighteen.
During redirect examination of Steven Poliansky, the defendants’ counsel did not attempt to enter into evidence the full deposition transcript.
Reference
- Full Case Name
- ANNA T. POLLANSKY v. STEVEN POLLANSKY
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- 2 cases
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- Published