Papageorgiou v. Diamond Pizza Restaurant, Inc., No. 85560 (Apr. 8, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]RULING RE MOTION TO DISMISS In this commercial summary process action, the defendants move to dismiss the action on two grounds: 1) there is a prior pending action between the parties, and 2) the relationship between the parties is not one of landlord and tenant.

As to the first ground, the parties agree that there is an action pending in the Hartford/New Britain Judicial District entitled Vasilious Papageorgiou v. Diamond Pizza Restaurant,Inc. And Michael T. Zerbini, Doc. No. CV 95 0470458. That action alleges the breach of a promissory note and seeks damages. This action is one seeking a judgment of possession. The prior pending doctrine provides that "when two separate lawsuits are `virtually alike' the second action is amenable to dismissal by the court."Conti v. Murphy, 23 Conn. App. 174, 178 (1990). However, the prior pending action doctrine does not apply to warrant a dismissal when the actions are for different purposes or ends.Fishman v. Middlesex Assurance Company, 4 Conn. App. 339,347-348 (1985). Here the two actions are for different ends. Accordingly, the motion must fail on this ground. CT Page 2832

As to the second ground of the motion, the defendants appear to be arguing that the plaintiff has no standing to bring the action. However, the complaint alleges:

7. The Plaintiff's rights to possession are superior to that of the Defendant's pursuant to the Collateral Assignment of Lease dated September 8, 1993 marked as exhibit A attached hereto.

See Duguay v. Hopkins, 191 Conn. 222, 227 (1983). The defendants assert in their motion that since no landlord tenant relationship exists between the parties, the case should be dismissed. Based upon the pleadings as well as the procedural posture of this case, the court does not address this issue on this motion. It is the plaintiff's burden at trial to show he is such an "owner or lessor" as noted in C.G.S. § 47a-23 and defined in C.G.S. § 47a-1(d) and (e).

For the above reasons, the Motion to Dismiss is denied.

Alexandra Davis DiPentima, Judge