Grossman v. TGM Anchor Point, LLC

Mark Grossman et al. v. TGM Anchor Point, LLC

No. FSTCV155014725

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

September 19, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE JURY DEMAND (#131)

Hon Charles T. Lee, J.

Plaintiffs Mark Grossman and his wife Marie McCormick commenced this action on or about May 15, 2015. The Amended Complaint now contains a first count alleging a breach of lease agreement for plaintiffs' apartment located at 150 Southfield Avenue, Stamford, Connecticut, and a count alleging intentional infliction of emotional distress against their current landlord, the defendant TGM Anchor Point, LLC. Defendant filed its answer and special defenses on November 24, 2015, and plaintiffs timely filed their Claim for Jury on December 3, 2015. On May 10, 2016, defendant filed the present motion to strike the jury demand (#131), and plaintiffs filed a memorandum in opposition (#133) with an exhibit (#134). The matter came on for argument and a hearing on June 27, 2016.

Defendant's motion refers to Paragraph 55 of the lease between the parties, which contains a sentence purporting to waive plaintiffs' right to trial by jury, specifically providing that, " If permitted by law, you waive the right to a jury trial in all legal proceedings relating to your use and occupancy of your Apartment, and you waive the right to countersue in any summary proceeding we bring" (at page 17). Plaintiffs contend that 1) the motion is barred by the doctrine of laches; 2) the lease is unenforceable because it does not comply with the " Plain Language" statute, Gen. Stat. § § 42-151 et seq.; and 3) the waiver is unenforceable against them as consumers under the circumstances of this case.

Background

As alleged in the Amended Complaint and as Mr. Grossman testified at the hearing, plaintiffs signed a previous lease for their apartment for the year June 2013-2014. They subsequently signed the present lease for the following year. All signatures were authorized electronically, and the provisions of the lease were posted on the internet. Mr Grossman has practiced law in New York for approximately forty years, specializing in landlord/tenant condominium/cooperative issues, and general litigation including the representation of court reporters. Ms McCormick is a psychiatrist, who said that she rented space for her office and was familiar with leases for same.

With respect to the current lease, Mr. Grossman testified that he reviewed the monetary terms in the first several pages, but did not read the rest of the lease. Ms. McCormick said she also reviewed the financial terms, but did not pay much attention to the rest of the lease. Both assumed that a term such as a jury waiver would be non-negotiable and was common in leases. Both authorized their signatures on page 18, the page following the page containing Paragraph 55, entitled " What other general provisions apply to this Lease?" Mr. Grossman does not believe he read that paragraph prior to receiving defendant's motion to strike the jury demand. Mr. Grossman does not claim that the landlord was guilty of any fraudulent conduct in connection with the lease.

Discussion

A. Laches

The burden is on the party alleging laches to establish that defense. Seymour Housing Authority Tenants Ass'n v. Housing Authority of Seymour, 18 Conn.App. 393, 405-06, 558 A.2d 1002 (1989). " Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955).

Plaintiffs argue that defendant should be estopped from moving to strike their jury demand because defendant waited almost six months to file the motion. Defendant filed the motion within two weeks of plaintiffs filing for a trial de novo after a negative decision in nonbinding arbitration. This delay is not inexcusable. Further, plaintiffs do not allege any prejudice arising from the delay in filing. Accordingly, the court declines to deny the motion on this basis.

B. The Plain Language Statute

Plaintiffs contend that the lease is long, wordy, has lengthy paragraphs and uses words such as " indemnify" and " non-interference, " which are not everyday words, and therefore violates Section 42-152 (Consumer contract to be written in plain language).

The court agrees that the lease is a consumer contract within the meaning of Section 42-151(b). Section 42-152(a) provides, " A consumer contract is written in plain language if it meets either the plain language tests of subsection (b) of this section or the alternate objective tests of subsection (c) of this section. A consumer contract need not meet the tests of both subsections."

Although plaintiffs argue that the lease does not comply with the objective tests of subsection (c), the court does not reach this contention because it concludes that the lease satisfies every subjective test in subsection (b) because, as required by the statute " (1) It uses short sentences and paragraphs; and (2) It uses everyday words; and (3) It uses personal pronouns, the actual or shortened names of the parties to the contract, or both, when referring to those parties; and (4) It uses simple and active verb forms; and (5) It uses type of readable size; and (6) It uses ink which contrasts with the paper; and (7) It heads sections and other subdivisions with captions which are in boldface type or which otherwise stand out significantly from the text; and (8) It uses layout and spacing which separate the paragraphs and sections of the contract from each other and from the borders of the paper; and (9) It is written and organized in a clear and coherent manner."

Furthermore Section 42-154 (Liability) provides, in the event of non-compliance, for liability to the consumer for " statutory damages of one hundred dollars plus, at the discretion of the court, an attorney's fee not to exceed one hundred dollars." Section 42-157(a) states, " A...