Atlantic St. Heritage Associates, LLC v. Atlantic Realty Co.

Atlantic St. Heritage Associates, LLC v. Atlantic Realty Company

No. FSTCV166029295S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

January 15, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Povodator, Kenneth B., J.T.R.

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#135.00, #147.00 and #168.00)

POVODATOR, JTR

Procedural Background

The plaintiff and the defendants own adjacent properties fronting on Atlantic Street in Stamford. The plaintiff claims an easement across the rear of the defendants’ properties including an alleyway between two of the defendants’ properties leading to the rear, providing access to the parking area behind the plaintiff’s property. Originally, the complaint sounded in three counts, the first and third asserting easement rights predicated on the existence of an expressly created/conveyed easement. Those two counts have been withdrawn, such that the plaintiff is proceeding solely on the basis of an amended version of what had been the second count, asserting a prescriptive easement.

Prior to withdrawal of the first and third counts, the plaintiff filed a motion for summary judgment (#135.00) relating to the second count asserting a prescriptive easement. The defendants filed a cross motion for summary judgment as to the first and second counts. The parties submitted numerous exhibits, and the court heard argument on September 23, 2019. (The first and third counts were withdrawn, and an amended version of the prescriptive easement claim was filed, after the parties had filed their respective submissions but prior to argument; therefore, to the extent that the defendants have moved for summary judgment on a count other than the remaining second count, that portion of the motion will be disregarded as a moot.)

One procedural irregularity, discussed extensively below, is that after argument on the cross motions for summary judgment relating to the claim for a prescriptive easement, the defendants filed a second amended answer and special defenses, increasing the number of defenses to that count from five to ten.

Facts

The basic facts are not in dispute in any meaningful sense (although at times there is a degree of imprecision); the disputes are at what might be called secondary or tertiary levels of details- and especially inferences to be drawn.

The plaintiff purchased 184 Atlantic in 1982 and has been the record owner of the property since that time. Since renovations were completed in late 1982, the property has consisted of an office building fronting on Atlantic Street with a gated parking lot at the rear of the building. From 1982 through 2014, visitors to and occupants of the plaintiff’s building accessed the plaintiff’s parking lot from Atlantic Street through the alleyway between and the paved area behind the buildings on Atlantic Street immediately to the south of 184 Atlantic, i.e. between and behind the defendants’ properties/buildings. (The defendants contend that such use was intermittent if not rare.) There is another means of access to the plaintiff’s parking area available to vehicles traveling in a northbound direction on Atlantic Street, that does not require utilization of the claimed easement area (although the alley-based access is also available to such drivers).

The defendants acquired their respective properties between 1988 and 2014, the two properties closest to the plaintiff’s property having been acquired in 2014.^[1] The defendant entities are all owned and/or controlled by members of the Yaraghi family.

The alleyway in question has been described by the plaintiff as follows: "Defendants’ parcels at 252 and 234 Atlantic are separated by a 12’ wide alleyway running in an east-west direction from Atlantic Street to the rear of 234 Atlantic. At the western mouth of the alleyway is a paved area behind 234, 210 and 200 Atlantic Street (formerly known as Quintard Place) that leads directly (in a north-south direction) to the parking lot of 184 Atlantic ... This route- from the Atlantic Street entrance to the alleyway to the gate to the parking lot at 184 Atlantic- is the Easement at issue on this Motion."^[2]

Until 2014, there was no restriction on access to the lot behind the plaintiff’s property via the alleyway and rear of the defendants’ properties except for brief interruptions during renovations to the properties owned by the defendants (including, at times, work on the alleyway and paved area to the rear of the buildings themselves). In or around 2014, a locked gate was installed by the defendants at the Atlantic Street entrance to the alleyway and a chain barrier was installed and utilized at the eastern end of the alleyway, preventing access of the plaintiff to their property via the claimed easement area at such times as the defendants chose to lock the gate and/or chain. (There was some variability in the evidence presented to the court as to whether there was a period of time after the gate had been installed that it was not interfering with the plaintiff’s use but that after a matter of months, the defendants’ control over the locking of the gate did begin to interfere with the plaintiff’s use; that uncertainty, measured in months, is not a material issue of fact.)

Prior to 2014, the defendants never prevented or limited the plaintiff or its occupants, tenants and visitors from use of the alleyway and rear of the buildings for access to the plaintiff’s parking lot. Again, there were brief interruptions due to renovations and the like, but no interruptions in the sense of assertion of a right to control use as such, intending to prevent the plaintiff’s visitors from access. (The closures, as described, seemingly would have affected the defendants’ invitees as well as the plaintiff’s.)^[3] To the extent that there were changes or improvements to the claimed easement- repaving, installation of speed bumps, signage, etc.- the plaintiff never complained about the changes and the defendants never sought input or payment from the plaintiff.

The defendants’ principals started a carpet business in their initial Atlantic Street property, which expanded over the years as additional properties were acquired (in the names of distinct defendant entities). During the first 15 years or so of the defendants’ ownership of the properties on Atlantic Street, Michael Yaraghi was primarily responsible for running the business and was on site virtually daily. Later, as the business expanded to other locations, he was on site less often but still with a degree of regularity. Arash Yaraghi was more involved during periods of renovations, and was on site during the course of the renovations as they were occurring. (Both of them have submitted affidavits in support of the defendants with respect to both pending motions; the plaintiff submitted excerpts from their depositions, and the defendants submitted copies of the entire transcripts.)^[4]

The plaintiff has asserted, by way of affidavits, that the plaintiff’s principals, employees, clients, and tenants (as well as the tenants’ employees and clients) regularly use the alleyway and rear of the defendants’ properties for access to the plaintiff’s parking lot. The defendants do not directly challenge such assertions, but rather have adopted a two-pronged approach- they state that they have seen only occasional use of the alleyway and back area for access to the plaintiff’s parking lot by the plaintiff’s principals, and that any use of the alleyway and rear of their buildings by persons heading to the plaintiff’s building is indistinguishable from use by the general public for purposes unrelated to access to the plaintiff’s building.

The second prong- that the use of the claimed easement area by persons heading to the plaintiff’s parking lot is indistinguishable from usage by the general public- is not so much a directly observed or personal knowledge type of fact, but rather at most an inference if not in the nature of an argument. As such, it will be discussed below. The first prong- that they have seen only occasional use by the plaintiff’s principals, etc.- is more in the nature of a factual statement, which requires some discussion at this point.

An assertion that the principals of the defendants- chiefly Michael- have seen only occasional (rare) use of the claimed easement by principals of the plaintiff is intended to suggest, without explicitly stating, that the usage is sporadic. Stating that an observer has only seen an event infrequently does not, without more (e.g., some sense of frequency and intensity of observation), support a reasonable inference that the event occurs only infrequently.

From a different perspective, this is a variation on the difficulties in proving a negative- this is an attempt to prove an almost-negative. Merely stating only occasional observations of the plaintiff’s principals or staff using the claimed easement area does not, without more, imply negation of regular use. Absent some level of monitoring of use of the alleyway and rear of the defendants’ buildings, or some equivalent ability to assert some absolute quality to the "occasional-ness" of the observations, the statement of only occasional observations is essentially anecdotal rather than factual in a general sense. It may be rare to see a neighbor from the far end of the street drive past one’s residence, but that would not support a reasonable inference that that neighbor only rarely or sporadically does drive on the street- except perhaps if accompanied by a statement that the observer regularly spends the day in a chair facing and observing the street. There is nothing in the record suggesting much less establishing that the...