Atl. St. Heritage Assocs., LLC v. Atl. Realty Co.

216 Conn.App. 530

285 A.3d 1128

ATLANTIC ST. HERITAGE ASSOCIATES, LLC

v.ATLANTIC REALTY COMPANY, et al.

AC 43857

Appellate Court of Connecticut.

Argued September 9, 2021

Officially Released November 22, 2022

Arthur N. Chagaris, pro hac vice, with whom was John R. Harness, for the appellants (defendants).

Michael J. Cacace, Stamford, with whom, on the brief, was Nicholas W. Vitti, Jr., Stamford, for the appellee (plaintiff).

Elgo, Moll and Pellegrino, Js.

MOLL, J.

The defendants, Atlantic Realty Company, 200 Atlantic, LLC, 210 Atlantic, LLC, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, appeal from the judgment of the trial court granting a motion for summary judgment filed by the plaintiff, Atlantic St. Heritage Associates, LLC, and denying their cross motion for summary judgment vis-à-vis the plaintiff's second amended complaint claiming a prescriptive easement over certain property at issue.¹ As to the summary judgment rendered in favor of the plaintiff, the defendants claim that the court (1) lacked the authority to grant the plaintiff's motion for summary judgment because, in moving for summary judgment, the plaintiff failed to address their special defenses, and (2) improperly determined that no genuine issues of material fact exist as to the plaintiff's prescriptive easement claim.² We agree in part with the defendants’ first claim that the court lacked the authority to grant the plaintiff's motion for summary judgment, such that we reverse the summary judgment rendered in favor of the plaintiff and remand the case for further proceedings. Additionally, because it is sufficiently likely to arise on remand, we will address the defendants’ second claim that the court incorrectly determined that there are no genuine issues of material fact regarding the plaintiff's prescriptive easement claim. As to the denial of their cross motion for summary judgment, the defendants claim that, as a matter of law, the plaintiff is precluded from asserting both deeded and prescriptive easement rights simultaneously. This claim is untenable. Accordingly, insofar as the defendants appeal from the denial of their cross motion for summary judgment, we affirm the judgment of the trial court.

The following facts, which are undisputed, and procedural history are relevant to our resolution of this appeal. In 1982, the plaintiff acquired commercial property located at 184 Atlantic Street in Stamford. Between 1988 and 2014, the defendants, which are entities owned or controlled by several nonparty family members, acquired parcels of commercial property situated to the south of the plaintiff's property on the same city block. Specifically, Atlantic Realty Company acquired 234 Atlantic Street in 1988; 252 Atlantic Street, LLC, acquired 252 Atlantic Street in 1994; and 200 Atlantic, LLC, and 210 Atlantic, LLC, acquired 200 Atlantic Street and 210 Atlantic Street, respectively, in 2014.³ Safavieh Atlantic, LLC, is a retail rug and furniture business, owned by the family members who own or control the other defendants, that leases the premises at those locations.

Located between 234 Atlantic Street and 252 Atlantic Street is a twelve foot wide alleyway (alleyway) providing a route from Atlantic Street to a paved area behind 200 Atlantic Street, 210 Atlantic Street, and 234 Atlantic Street (paved area), which connects to a gated parking lot that services the plaintiff's property.⁴ In 2015, the defendants erected a gate at the western end of the alleyway facing Atlantic Street and installed a chain barrier across the eastern end of the alleyway abutting the paved area. The defendants lock the gate and put the chain barrier in place during the hours when Safavieh Atlantic, LLC, is closed for business. The defendants have refused to provide the plaintiff with a key to the gate.

In July, 2016, the plaintiff commenced the present action against Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC. In count one of its original, three count, verified complaint, the plaintiff alleged that it owned a deeded easement right to the alleyway. In count two, the plaintiff alleged that, pursuant to General Statutes § 47-37, it had acquired a prescriptive easement over the alleyway. In count three, the plaintiff alleged that it owned a deeded easement right to a thirty foot right-of-way in the paved area linking the alleyway to the plaintiff's parking lot. On October 28, 2016, Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, filed a verified answer denying the plaintiff's material allegations. Additionally, these defendants asserted five special defenses directed to all three counts of the original complaint, namely, (1) failure to state a claim on which relief can be granted, (2) waiver, (3) estoppel, (4) unclean hands, and (5) laches.⁵

On November 14, 2017, the plaintiff filed a motion to cite in 200 Atlantic, LLC, and 210 Atlantic, LLC, as additional defendants and requested permission to file an amended, verified complaint. On December 8, 2017, after the trial court, Povodator, J. , had granted its motion without objection, the plaintiff filed an amended, three count, verified complaint, which was identical to the original complaint other than (1) setting forth the interests of 200 Atlantic, LLC, and 210 Atlantic, LLC, and (2) expanding the scope of count two by alleging a prescriptive easement over both the alleyway and a portion of the paved area connecting the alleyway to the plaintiff's parking lot. Atlantic Realty Company, 252 Atlantic Street, LLC, and Safavieh Atlantic, LLC, did not plead further in response to the amended complaint, whereas 200 Atlantic, LLC, and 210 Atlantic, LLC, filed an answer and special defenses that tracked the other defendants’ October 28, 2016 pleading.

On April 26, 2019, the plaintiff filed a motion for summary judgment, accompanied by a supporting memorandum of law, exhibits, and affidavits, as to count two of its amended complaint alleging a prescriptive easement. Among the affidavits submitted by the plaintiff were personal affidavits of Richard A. Silver and David S. Golub, two of the plaintiff's members, and of Jonathan A. Blauner, an employee of the plaintiff. On June 18, 2019, the defendants filed a memorandum of law in opposition to the plaintiff's motion for summary judgment, accompanied by exhibits and affidavits, and, on June 21, 2019, they filed a cross motion for summary judgment, which incorporated their June 18, 2019 memorandum of law and the accompanying exhibits and affidavits, as to the plaintiff's amended complaint. Among the affidavits submitted by the defendants were the personal affidavits of Michael Yaraghi (Michael) and Arash Yaraghi (Arash), two of the family members who own or control the defendants. On August 5, 2019, the plaintiff filed a combined memorandum of law replying to the defendants’ objection to its motion for summary judgment and objecting to the defendants’ cross motion for summary judgment.

On August 27, 2019, the plaintiff withdrew counts one and three of its amended complaint, which had alleged deeded easement rights to the alleyway and to a portion of the paved area, respectively. The same day, the plaintiff moved for permission to file a second amended complaint, submitted with its motion, which the court granted without objection on September 9, 2019. The sole count of the second amended complaint (operative complaint) alleged that the plaintiff had acquired in 1997 a prescriptive easement over the alleyway and a portion of the paved area leading to its parking lot (claimed easement area). As relief, the plaintiff sought (1) a declaratory judgment establishing that it has prescriptive rights to use the claimed easement area without interference from the defendants and (2) preliminary and permanent injunctions barring the defendants from interfering with its use of the claimed easement area. On September 12, 2019, the plaintiff filed a revised motion for summary judgment, which relied solely on its prior summary judgment submissions, seeking summary judgment as to the prescriptive easement claim raised in its operative complaint. On September 23, 2019, the court heard oral argument on the parties’ cross motions for summary judgment.

On October 15, 2019, without seeking leave of the court, the defendants filed an answer to the plaintiff's operative complaint denying the plaintiff's material allegations. Additionally, the defendants filed amended special defenses, reasserting the original five special defenses set forth in their prior pleadings and asserting five new special defenses. The amended third, fifth, sixth, seventh, and eighth special defenses substantively tracked the original five special defenses asserted previously as to count two of the plaintiff's prior complaints. The amended first special defense alleged that the plaintiff was precluded from claiming a prescriptive easement over the claimed easement area because, in its original complaint and in its amended complaint, it had asserted deeded easement rights to the same. The amended second special defense alleged, affirmatively, that the plaintiff has a deeded easement right to a portion of the paved area located behind 200 Atlantic Street and 210 Atlantic Street, thereby precluding the plaintiff from simultaneously claiming a prescriptive easement over the same. The amended fourth special defense alleged that the plaintiff used the claimed easement area with the permission of the prior owner of the defendants’ properties and that such permission was revoked subsequently. The amended ninth special defense alleged that the plaintiff had used the claimed easement area with the implied permission of the defendants because, through its conduct, the plaintiff had recognized the defendants’ superior claim to the claimed easement area. The amended tenth special defense alleged that the plaintiff had failed to state a claim on which relief can be granted...