Sylvain v. Paecht

Joseph Michael SYLVAIN et al. v. Kenneth PAECHT et al.

No. CV175040060S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 22, 2019

UNPUBLISHED OPINION

Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiffs Joseph Michael Sylvain and Gina Marie Sylvain (the plaintiffs) commenced this civil action by service of writ summons and complaint against the defendants, Kenneth Paecht and Dawn M. Lewis a/k/a Dawn M. Paecht (defendants). The three-count amended complaint which is the operative complaint was filed on July 16, 2018, and alleges the following facts. The plaintiffs own real property, a three-story rental home, at 259-61 Blohm Street, West Haven Connecticut. The defendants own real property, a three-story rental home, at 255-57 Blohm Street, West Haven, Connecticut. The plaintiffs and the defendant, Kenneth Paecht, are first cousins. Their properties are contiguous, with the plaintiffs’ rental home located to the west of the defendants’ rental home. The plaintiffs have used a portion of the premises as the sole and exclusive driveway for 259-61 Blohm Street. In May 2017, the defendants paved a portion of said driveway, created a curb over said driveway, and placed planters along the property line. On September 12, 2017, the plaintiffs installed a fence on their property in the backyard, between a parking area of the two properties. Thereafter, in October 2017, the defendants installed a fence on a part of their land that the plaintiffs had previously used as a driveway. The plaintiffs allege that the defendants’ actions in installing a fence and creating a curb has interfered substantially with their use and enjoyment of their driveway and property and is dangerous and hazardous as it has impeded egress and ingress to their property, including their back parking area, and will block emergency vehicles. They further allege no valid reason exists to support the defendants’ actions and that, upon information and belief, said actions were done out of malice and spite and to annoy the plaintiffs’ use and enjoyment of their property. The plaintiffs allege that the defendants’ actions have, and will continue to, not only affect the plaintiffs’ peaceful use and enjoyment of the property, but also have, and will continue to, unreasonably interfere with their property rights, including but not limited to, the value of their property and their rental income.

The plaintiffs assert claims sounding in common-law nuisance and violations of Connecticut General Statutes § § 52-480 and 52-570. The plaintiffs seek, inter alia, money damages, a judgment determining the rights of the parties and the right(s) related to a described right of way, injunctive relief, and attorneys fees. The defendants filed an answer and special defense in response on October 17, 2018, to which the plaintiffs filed a reply on the same day. A two-day court trial commenced on December 20, 2018. This court has carefully considered the testimony and evidence presented at the trial and has reached the findings and conclusions described herein.

STANDARD OF REVIEW

"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... It is the quintessential function of the fact finder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillii ps, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).

"The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). "[T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some- of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff[s] to prove all of the essential allegations of their complaint and on the defendant[s] to prove all of the essential elements of their affirmative defense. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). "While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it ... The general burden of proof in civil actions is on the plaintiff[s], who must prove all the essential elements of [their] cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, "[a] special defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendants must prove all of the essential elements of their affirmative defense by a fair preponderance of the evidence. The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). "The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

FINDINGS OF FACT

The court makes the following findings of fact by a fair preponderance of the evidence. The plaintiffs and the defendant, Kenneth Paecht, are first cousins, and their maternal grandfather, Joseph Velardi purchased both 255-57 Blohm Street and 259-61 Blohm Street in the 1940s. When both properties were owned by Velardi, tenants in each house regularly used the combined fifteen feet between the homes to access parking in the rear of the properties, which at some unknown point in time had been paved. In 2013, the defendant, Kenneth Paecht purchased 255-57 Blohm Street from Velardi, his grandfather. Thereafter, defendant Paecht quitclaimed a portion of the property to his wife, defendant, Dawn M. Lewis a/k/a Dawn M. Paecht.

The plaintiffs’ mother, Elaine Sylvain inherited 259-61 Blohm Street following Velardi’s death. Subsequently, Michael Paecht, defendant Kenneth Paecht’s brother, entered into negotiations with the plaintiffs’ mother and plaintiff Gina Sylvain, for the purchase of 259-61 Blohm Street. Negotiations were unsuccessful and fell apart and Michael Paecht ultimately did not purchase 259-61 Blohm Street. In December 2016, Elaine Sylvain quit claimed 259-61 Blohm Street to her children, the plaintiffs, Joseph Michael Sylvain and Gina Marie Sylvain.

255-57 Blohm Street and 259-61 Blohm Street are adjacent multi-story homes located in West Haven, Connecticut. Each property consists of identical lots, each forty feet wide, abutting Blohm Street. Each lot contains a ten-foot-wide driveway on the right side of the house, as one faces the house, and a five-foot-wide area, a sidewalk or walkway, on the left side of the house, as one faces the house. The combined distance between the foundation of the two homes is fifteen feet. The plaintiffs’ premises and defendants’ premises are contiguous, with the plaintiffs’ premises to the west of the defendants’ premises.

In December 2016, the plaintiffs began renovations to 259-61...