12 Havemeyer Place Co., LLC v. Gordon

• Decision Date: 17 January 2006
• Docket Number: No. 25864.,25864.
• Citation: 93 Conn.App. 140,888 A.2d 141
• Court: Connecticut Supreme Court
• Parties: 12 HAVEMEYER PLACE COMPANY, LLC v. Allan S. GORDON.

888 A.2d 141

93 Conn.App. 140

12 HAVEMEYER PLACE COMPANY, LLC v. Allan S. GORDON.

No. 25864.

Appellate Court of Connecticut.

Argued October 17, 2005.

Decided January 17, 2006.

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Eric D. Grayson, Greenwich, for the appellant (plaintiff).

David W. Rubin, Stamford, for the appellee (defendant).

DRANGINIS, FLYNN and McLACHLAN, Js.

DRANGINIS, J.

This appeal concerns a mundane matter of increasing importance in today's urban society, parking spaces. The determinative issue on appeal is whether the claims for declaratory relief, equitable reformation of a lease, injunctive relief and breach of the lease are barred by the doctrines of res judicata and collateral estoppel pursuant to 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003) (Havemeyer I), a summary process action. On appeal, the plaintiff, 12 Havemeyer Place Company, LLC, has raised numerous claims related to the judgment rendered by the trial court after the granting of the motion for summary judgment filed by the defendant, Allan S. Gordon.¹ Because the legality of the lease at issue was adjudicated in Havemeyer I, we affirm the judgment of the trial court.

The parties agree as to the historical facts giving rise to their ongoing dispute, which were set out in Havemeyer I.² The "dispute relates to the parties' interests in sixteen parking spaces located in an underground parking garage, which currently is owned by the plaintiff. . . ." Id., at 379, 820 A.2d 299. "The defendant leases the sixteen parking spaces from the plaintiff for the benefit of a building owned by the defendant at 71 Arch Street [in Greenwich]. . . . In 1980, John Jay Ginter Development and Construction, Inc., the then owner of both 60 Arch Street and 71 Arch Street, filed a site plan for 60 Arch Street with the town of Greenwich planning and zoning commission (commission). The commission approved the site plan, which showed a three story office retail building with a total of fifty-eight parking spaces. The preliminary site plan application, dated November 12, 1980, designated forty-eight of the spaces for 60 Arch Street and ten for 71 Arch Street. This designation, however, was deleted from the application for final site plan approval, dated December 8, 1980, which merely proposed fifty-eight spaces without any reference to 71 Arch Street. In a subsequent site plan, dated December 10, 1980, the designation of forty-eight spaces required for 60 Arch Street and the ten spaces for 71 Arch Street reappeared.

"By 1988, Greenwich Cove Associates (Greenwich Cove), a predecessor of both the plaintiff and the defendant, had acquired both 60 Arch Street and 71 Arch Street. In August, 1988, Greenwich Cove negotiated the sale of 60 Arch Street to Skanska, Inc. As a final negotiated term of the sale, Skanska, Inc., the new owner of 60 Arch Street, leased sixteen of 60 Arch Street's fifty-eight parking spaces to Greenwich Cove for use by 71 Arch Street, thereby increasing the number of spaces for 71 Arch Street as described in the site plan by six spaces. This left 60 Arch Street's tenants with the use of only forty-two parking spaces, six fewer than required by the site plan. The lease had a term of fifty years, was renewable thereafter in five year increments and was recorded in the town of Greenwich land records. It is this lease, to which neither the defendant nor the plaintiff originally were parties, which is the subject of [on-going litigation between the parties].

"In 1989, the defendant purchased 71 Arch Street from Greenwich Cove, thus obtaining the benefit of the lease, as a successor lessee. The defendant testified [in Havemeyer I] that the lease, which provided him with sixteen parking spaces in the 60 Arch Street garage, for his tenants at 71 Arch Street, was a major factor for the purchase. In 2000, the plaintiff, which was fully aware of the recorded lease, purchased 60 Arch Street from Skanska, Inc., and became the successor lessor. The purchase price paid by the plaintiff was less than it would have been had there been forty-eight parking spaces allocated to 60 Arch Street instead of forty-two spaces.

"The dispute involved in [Havemeyer I] arose when the plaintiff, as the new owner of 60 Arch Street, inquired of the town of Greenwich [town] about the recorded lease, which left 60 Arch Street with forty-two parking spaces, and about the possible conflict of the lease with the site plan, which required forty-eight spaces for 60 Arch Street. In the preceding twelve years, no tenant, neighbor or predecessor in title of either building had complained to any zoning authority of any site plan violation as it related to parking. The town's zoning enforcement officer responded to the plaintiff's inquiry by stating that he believed there was a violation of a zoning regulation. . . .

"[I]n January, 2001, the plaintiff rejected the defendant's tender of rent and informed the defendant by letter that it was of the opinion that the lease was void or voidable because it violated the site plan. In February, 2001, in a separate action, the defendant in this case instituted an action against the plaintiff in this case seeking declaratory judgment as to the enforceability of the lease, injunctive relief and damages. [The defendant here] also claimed damages for tortious interference with his leases with his tenants, which leases granted the tenants the right to use the parking spaces at 60 Arch Street. [He] withdrew his application for a temporary restraining order against [the plaintiff here] in exchange for [the latter's] agreement to seek a variance of the site plan. The zoning board of appeals denied the application for a variance because a hardship was not demonstrated, but the plaintiff in this case did not appeal to the Superior Court from the denial.

"After the variance was denied, the zoning enforcement officer cited the plaintiff for the reduction of on-site parking as a violation of § 6-16 of the municipal building code regulations and directed the plaintiff to restore the forty-eight parking spaces as provided in the site plan.

"Subsequently, the plaintiff served the defendant with a notice to quit and then brought the summary process action for immediate possession of the sixteen parking spaces, which [was] the subject of [Havemeyer I]. The defendant asserted three special defenses to the summary process action. He alleged that the lease was not illegal or void, that equity barred the plaintiff's claim `by virtue of, among other things, the facts set forth at length in [his] Complaint dated February 14, 2001, in the action [Gordon v. Havemeyer Place Co., LLC, Docket No. CV01-01844544S] and the doctrines of equitable estoppel, laches, unclean hands and unjust enrichment,' and that the plaintiff failed to state a claim on which relief could be granted. The court granted judgment in favor of the defendant." 12 Havemeyer Place Co., LLC v. Gordon, supra, 76 Conn.App. at 380-83, 820 A.2d 299.

The plaintiff appealed to this court. The precise question addressed in Havemeyer I was "whether a lessor, on the ground of illegality, may gain possession of leased premises from a lessee solely on the ground that the recorded lease varied the requirements of a site plan, when the lessee has not breached any covenant of the lease and the town has not cited the lessee for a violation or ordered the lessee to take any corrective action." Id., at 383, 820 A.2d 299. This court held that given the particular facts of the case, the plaintiff was not entitled to possession because the "violation of the zoning laws with regard to the parking required by the site plan was not sufficient to render the lease illegal as against public policy." Id., at 392, 820 A.2d 299.

On April 15, 2004, the plaintiff caused the present action to be served on the defendant. The verified complaint alleged facts consistent with the preceding history, as well as that the town's zoning enforcement officer had issued notice of a violation against the defendant and 71 Arch Street on the basis of the lease and the use of the six parking spaces at 60 Arch Street. Furthermore, the plaintiff alleged that paragraph five of the lease requires the defendant to comply with "all statutes, ordinances, rules, orders, regulations and requirements of the federal, state and city government and of any and all other departments and bureaus applicable to the [p]arking [s]paces." In addition, the plaintiff alleged that the defendant must vacate the six parking spaces to restore the approved conditions of the site plan.

The verified complaint also alleged that on April 2, 2004, the plaintiff gave written notice to the defendant that he must comply with the town's notice of violation and vacate the parking spaces so that the use of the building will comply with the site plan.³ The plaintiff also informed the defendant that if he did not vacate the parking spaces voluntarily, the plaintiff would commence the present action to evict him from the parking spaces or invoke equity to reform the lease. The plaintiff also alleged that the defendant, through counsel, had informed it that the defendant would not vacate the parking spaces voluntarily or comply with the order from the zoning enforcement officer.

The complaint further alleged that the plaintiff was unable to obtain a zoning variance because the issue concerning the parking spaces was self-created and that the commission cannot vary its regulations with respect to the parking spaces at 60 Arch Street. In count one of the verified complaint, the plaintiff alleged that bona fide and substantial questions exist as to the legality of the lease and whether the defendant must vacate six of the parking spaces to comply with the town's zoning order. The plaintiff prayed that the court declare the lease illegal as to six parking spaces.

Count two of the verified...