Cohen v. Postal Holdings, LLC, 072820 CTCA, AC 42912

Docket Nº:AC 42912
Opinion Judge:MOLL, J.
Party Name:CHAD E. COHEN ET AL. v. POSTAL HOLDINGS, LLC
Attorney:Beverley Rogers, submitted a brief for the appellants (plaintiffs). Matthew G. Conway and Raymond M. Gauvreau submitted a brief for the appellee (defendant).
Judge Panel:DiPentima, C. J., and Moll and Devlin, Js.
Case Date:July 28, 2020
Court:Appellate Court of Connecticut
 
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CHAD E. COHEN ET AL.

v.

POSTAL HOLDINGS, LLC

No. AC 42912

Court of Appeals of Connecticut

July 28, 2020

Submitted on briefs April 22, 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 judgment and rendered judgment thereon, from which the plaintiffs appealed to this court. Affirmed.

Beverley Rogers, submitted a brief for the appellants (plaintiffs).

Matthew G. Conway and Raymond M. Gauvreau submitted a brief for the appellee (defendant).

DiPentima, C. J., and Moll and Devlin, Js.

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 plaintiffs 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, accordingly, we affirm the summary judgment of the trial court.1

The following facts and procedural history are relevant to our resolution of this appeal. In 1982, Connecticut 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 property 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 indemnify 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 wrongful 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 negligent 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 modified 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 (successor 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 modified 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 complaint, 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, pursuant 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 defendant 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 terminating 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. Thereafter, the plaintiffs appealed from the summary 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 defendant's third-party complaint against USPS for lack of subject matter jurisdiction, lacked supplemental jurisdiction 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, soundingin 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. Additional 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 deciding 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 applicable 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 judgment 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 improperly granted the defendant's motion for summary judgment as to their negligence claim on the...

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