Cref, LLC v. Puskarz

• Decision Date: 08 July 2016
• Docket Number: HDSP180219
• Court: Connecticut Superior Court
• Parties: CREF, LLC v. Eric Anthony Puskarz et al

CREF, LLC v. Eric Anthony Puskarz et al

No. HDSP180219

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Housing Session

July 8, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT AND WRIT OF AUDITA QUERELA

Nicola E. Rubinow, J.

This memorandum of decision addresses the issues arising from the Motion to Open Judgment filed by the defendant Anthony Eric Puskarz (Puskarz) on September 11, 2015, and those issues a rising the Writ of Audita Querela also filed by him on that date. The memorandum of decision also addresses the objections to the defendant's motion and writ raised by the plaintiff CREF, LLC (CREF) through its comprehensive detailed memorandum filed October 26, 2015.

The plaintiff filed the motion to open and writ as a self-represented litigant. Thereafter, and at all other relevant times, both parties have been represented by skilled and experienced counsel.

Upon due consideration and for the following reasons, the court find the issues arising from the motion to open in favor of CREF, and finds the writ of audita querela in favor of Purkarz.

I PROCEDURAL HISTORY

The plaintiff CREF, LLC, as lessor, brought a summary process against Puskarz and Christina Lynn Purkarz, as they were parties to a lease permitting them to reside at Unit #103 (the dwelling unit) located at 658 Farmington Avenue in Hartford, CT (the premises).^[1] As grounds for summary process, the plaintiff alleged only " lapse of time" as contemplated by General Statutes § 47a-23(a)(1)(A). On July 27, 2015, CREF caused a state marshal to serve a notice to quit upon Puskarz, informing him in plain language of the grounds for summary process, of his need to leave the dwelling unit on or before July 31, 2015 and explaining that any money received after service of the notice to quit would be accepted only as payment for use and occupancy. On August 15, 2015, CREF caused a state marshal to serve Puskarz with the summary process documents, including the complaint; the matter was returned to court and filed on August 16, 2015.

Puskarz did not quit the premises, and did not appear in the summary process action. On August 26, 2015, CREF filed a motion for default against Puskarz due to his failure to appear supported by a sufficient military affidavit. On August 28 2015, the court (Woods, J.) granted the default motion and entered judgment of possession against Puskarz and in favor of CREF.

Just prior to 5:00 p.m. on September 11, 2015, Puskarz filed documents with the court in an effort to stay execution upon the judgment. Through his motion to open, Puskarz claimed that he had not appeared in the summary process case because: " I have a mental disability and did not understand the papers"; the writ of audita querela claimed that the " defendant lives in government-subsidized housing and may lose the subsidy if evicted" and that he " has no suitable place to live if evicted."

On September 15, 2016, counsel appeared for Puskarz. On October 26, 2016, CREF filed its thorough and carefully reasoned objection to both the motion to open and the writ of audita querela raising, among other pertinent concerns, its claim that " there has been no evidence presented that the Defendant has a mental disability" sufficient to entitle him to any relief requested. Through this objection, CREF also presented a number of serious allegations about the defendant's behavior at and near the dwelling unit, arguing among other things that " tenants are continually indicating that they are being bothered by the tenant, some saying they feel threatened and many threatening to leave the building." (Plaintiff's Objection, 10/26/16.) In response, on October 27, 2015, this court ordered Puskarz to produce evidence from one or more qualified health care providers so that it could assess the nature and extent of any mental disability that may affect the defendant and, thereupon, determine whether either his motion or his writ need be granted notwithstanding default judgment already entered in favor of CREF.

This complex, highly contested matter was heard over the course of many months. On December 1, 2015 Puskarz's attorney filed a motion seeking appointment of a Guardian ad Litem by the Superior Court. On December 2, 2015, noting that no representative had been appointed for Puskarz by the Probate Court, this court denied the motion, albeit without prejudice to the effect, if any, of evidence that had already been adduced by a health care professional relating to the subject of the defendant's alleged mental disability. On December 14, 2015, this court granted the defendant's Request for Leave to Amend his Motion to Open the Judgment, adding the allegation that " At the time judgment entered there existed a good defense to this action, to wit: this action was brought solely on the basis of termination of lease by lapse of time and Conn. Gen. Statute bars the eviction, without good cause, of a tenant who, like the Defendant, lives in a building containing 5 or more units and who, like the Defendant, has a mental disability as defined in subdivision (8) of section 46a-64b of the general statutes." (Defendant's Request for Leave to Amend, 11/20/13.)

II APPLICABLE LEGAL PRINCIPLES

In this civil proceeding, the movant's burden of proof is a fair preponderance of the evidence; this burden applies both to the motion to open and the pending writ of audita querela.^[2] Here, as it required to do where the defendant's motion to open appears to allege that the default judgment was granted due to a " mistake" as contemplated by Practice Book § 17-43, the court has heard evidence and made a factual determination before exercising " its discretion to grant or deny the motion . . ." (Citation omitted.) Housing Authority of Stamford v. Lamothe, 225 Conn. 757, 769, 627 A.2d 367 (1993).

Generally " [t]he writ of audita querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor . . . The ancient writ of audita querela has been defined as a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense (e.g., a release) arising, or at least raisable for the first time, after judgment . . . Because the writ impairs the finality of judgments, the common law precluded its use in cases in which the judgment debtor sought to rely on a defense such as payment or a release that he had the opportunity to raise before the entry of judgment against him. (Internal quotation marks omitted.) Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 50 Conn.App. 289, 294, 717 A.2d 294 (1998)." TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc., 133 Conn.App. 536, 547, 37 A.3d 766 (2012). See also Orange Palladium, LLC v. Readey, 144 Conn.App. 283, 298, 72 A.3d 1191 (2013); Ruiz v. Gatling, 73 Conn.App. 574, 574 n.2, 808 A.2d 710 (2002). A writ of audita querela cannot be filed properly until after the entry of judgment. TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc., supra, 133 Conn.App. 548 n.10. In a case such as this, the writ of audita querela also effectively requires the court to consider and apply principles of equity where judgment has been entered upon grounds that do not satisfy the legislature's summary process scheme as a whole because a fundamental, statutorily created defense was not brought to the attention of the judicial authority entering the default.

Thus, the issues raised by the defendant's writ of audita querela require the court to address the relevant provisions of General Statutes § 47a-23c(a)(1)^[3] which establish absolute protection from eviction for certain tenants, and the relevant provisions of General Statutes § 47a-23c(b)(1)^[4] which define the circumstances under which the tenants identified in § 47a-23c(a)(1)(B) are not statutorily protected.

" [T]he statutes relating to summary process must be narrowly construed and strictly followed." (Citations omitted internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999); Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985)." Housing Authority of New Haven v. DeRoche, 112 Conn.App. 355, 361, 962 A.2d 904, 908 (2009) (requiring strict construction of the language contained in a pretermination notice). However, " '[i]t is a basic tenet of statutory construction that [w]e construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation.' (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 9, 905 A.2d 55 (2006)." Planning and Zoning Commission of the Town of Monroe v. Freedom of Information Commission, 316 Conn. 1, 12-13, 110 A.3d 419 (2015). Accordingly, construction of the statutory ground alleged in the plaintiff's summary process action, lapse of time, the defendant's motion to open and his writ of audita querela not only require the court's attention to § 47a-23c(a)(1)(B) but also to § 47a-23c(b)(1). In so doing, the court has been guided by the fact that, as originally drafted, § 47a-23c was identified as " 'a remedial statute intended to benefit elderly, blind and physically disabled tenants.' O'Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 373, 576 A.2d 469 (1990); see 23 H.R. Proc., Pt. 18, 1980 Sess., p. 5327, remarks of Representative Richard D. Tulisano; 23 S. Proc., Pt. 5, 1980 Sess., pp. 1393-94, remarks of Senator Clifton A. Leonhardt. As such, the statute must be 'construed liberally in favor of those whom the legislature intended to benefit; in order to effect the legislative intent. O'Brien Properties, Inc. v. Rodriguez, ...