Stop Shop Supermarket v. Clinton Bootery, No. Cv9-11868 (Sep. 14, 2000) Ct Page 11194

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISSThe defendant claims that the court lacks subject matter jurisdiction because the defendant never received any notice of the assignment of the lease from JMH Associates, LLC to the plaintiff Stop Shop. There is no claim that the notice to quit is defective. After a review of the subject lease, this court finds and holds that there was no requirement under the terms of the lease that the defendant be served with a formal notice of any assignment.

The defendant also argues that Section 11.1.2 of the lease requires the landlord to send notice of default to the tenant. This provision would give the tenant an opportunity to cure the default. However, no notice was necessary pursuant to that section since the summary process action is based on a lapse of time, not a default of the tenant.

The acceptance of the August rend did not waive this summary process action because the notice to quit stated that "All monies received after this date will be accepted as use and occupancy, attorney's fees and costs without waiving any rights to proceed with an eviction action.

For the foregoing reasons, the Motion to Dismiss is hereby DENIED.

PATRICK J. CLIFFORD JUDGE OF THE SUPERIOR COURT