Atlantic St. Heritage Associates, LLC v. Atlantic Realty Co. ( 2022 )

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ATLANTIC ST. HERITAGE ASSOCIATES, LLC
v. ATLANTIC REALTY COMPANY ET AL.
(AC 43857)
Elgo, Moll and Pellegrino, Js.
Syllabus
The plaintiff, an entity that owned commercial real property, sought, inter
alia, injunctive relief enjoining the defendants, various entities that
owned or leased commercial property located to the south of the plain-
tiff’s property within the same city block, from interfering with the
plaintiff’s right to use a claimed easement area. The plaintiff acquired
its real property in 1982, and the defendants, which were all owned or
controlled by members of the same family, purchased their respective
real properties between 1988 and 2014. Since the acquisition of its
property, the plaintiff’s members, employees, tenants, and invitees have
used a twelve foot wide alleyway located between two of the properties
owned by certain of the defendants and a portion of the paved area
behind the defendants’ properties to access its own gated parking lot.
In 2015, the defendants erected a gate at the end of the alleyway that
connected to the street and installed a chain barrier across the end of
the alleyway that abutted the paved area. During the hours when the
retail business that operated out of the defendants’ properties was
closed, the defendants locked the gate and put the chain barrier in place.
After the defendants refused to provide the plaintiff with a key to the
gate, the plaintiff commenced the present action, alleging, in its operative
complaint, that it had a prescriptive easement over the alleyway and a
portion of the paved area. The defendants asserted five special defenses
to the plaintiff’s complaint prior to its filing of the operative complaint.
Thereafter, the plaintiff filed a motion for summary judgment, and the
defendants filed a cross motion for summary judgment. The trial court
heard oral argument on the parties’ cross motions. Thereafter, without
seeking leave of the court, the defendants filed an answer to the plaintiff’s
operative complaint and filed amended special defenses, which reas-
serted the five original special defenses and also asserted five new
special defenses. The trial court granted the plaintiff’s motion for sum-
mary judgment and denied the defendants’ cross motion for summary
judgment. On the defendants’ appeal to this court, held:
1. The trial court improperly granted the plaintiff’s motion for summary judg-
ment:
a. To invoke the trial court’s authority to grant the plaintiff’s motion for
summary judgment, the plaintiff was obligated to address any special
defenses to its operative complaint that the defendants had properly
asserted in accordance with the rules of practice and, in moving for
summary judgment, the plaintiff addressed only one of the defendants’
five original special defenses: the trial court improperly adjudicated, sua
sponte, the defendants’ other four original special defenses that asserted
waiver, estoppel, unclean hands, and laches; moreover, the plaintiff was
not obligated to address the defendants’ new special defenses and the
trial court did not err in rejecting the same on procedural grounds
because those defenses were not properly before the court, as the defen-
dants did not file them until approximately three weeks after the date
of oral argument on the parties’ motions for summary judgment, which
was beyond the filing period prescribed by the applicable rule of practice
(§ 10-61), and they did so without obtaining the trial court’s permission.
b. The defendants’ claim that the trial court improperly determined that
there were no genuine issues of material fact as to the plaintiff’s prescrip-
tive easement claim was unavailing: the trial court properly rejected
the relevant portion of the affidavit submitted in connection with the
defendants’ cross motion for summary judgment by M, one of the family
members who controlled the defendants, because it did not constitute
competent evidence pursuant to the applicable rule of practice (§ 17-
46), as M’s averments regarding the frequency with which the plaintiff
used the alleyway were conclusory rather than factual, in that they lacked
any indication of the regularity and frequency of M’s observations of the
vehicular traffic in the alleyway and over the paved area and evidenced
his limited familiarity with the plaintiff and his inability to recognize
vehicles driven by any of the plaintiff’s owners, employees, clients or
tenants, other than two individuals; moreover, the trial court did not err
in concluding that there were no genuine issues of material fact that the
plaintiff’s use of the alleyway was under a claim of right because the
plaintiff’s failure to respond to occasional closures of the alleyway during
the prescriptive period did not, on its own, imply that the plaintiff recog-
nized a superior right of the defendants to the alleyway and the defen-
dants’ evidence that the parties were friendly with one another and
shared parking spaces under certain circumstances was too speculative
to infer implied permission on behalf of the defendants, as those facts
were disconnected from the plaintiff’s use of the alleyway; furthermore,
the trial court did not err in concluding that there were no genuine issues
of material fact as to whether the plaintiff’s use of the claimed easement
area was distinguishable from the public’s use of that area, and, by
comparing the use of both the alleyway and the paved area, the court
conducted the correct analysis in making that determination because
the plaintiff alleged in its operative complaint that it had acquired a
prescriptive easement over both the alleyway and a portion of the paved
area, and the defendants’ special defense that asserted that the trial court
should have considered only the use of the alleyway was procedurally
improper because it was raised in the pleading that was filed in violation
of Practice Book § 10-61.
2. The defendants’ claim that the trial court improperly denied their cross
motion for summary judgment was unavailing: the defendants’ claim
that the plaintiff could not seek to establish both deeded and prescriptive
easements was not properly before the trial court because the defendants
did not include such claim in their summary judgment submissions and,
instead, asserted it for the first time at oral argument on the parties’
motions for summary judgment and reasserted it in the pleading that
the trial court deemed was procedurally improper pursuant to Practice
Book § 10-61; moreover, because the defendants did not challenge on
appeal the trial court’s rejection of the claim on procedural grounds,
this court did not reach the merits of the claim; furthermore, even if
this court assumed that the defendants had properly raised the claim
before the trial court, it would still fail because the plaintiff abandoned
its deeded easement claims by withdrawing those counts from its com-
plaint and by filing its operative complaint, which alleged only a prescrip-
tive easement over the claimed easement area.
Argued September 9, 2021—officially released November 22, 2022
Procedural History
Action for, inter alia, a temporary and permanent
injunction prohibiting the defendants from restricting
the plaintiff’s access to a claimed easement area, and
for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
Povodator, J., granted the plaintiff’s motions to cite
in 200 Atlantic, LLC, and 210 Atlantic, LLC, as party
defendants; thereafter, the court, Hon. Kenneth B.
Povodator, judge trial referee, granted the plaintiff’s
motion for summary judgment, denied the defendants’
cross motion for summary judgment, and rendered
judgment thereon, from which the defendants appealed
to this court. Reversed in part; further proceedings.
Arthur N. Chagaris, pro hac vice, with whom was
John R. Harness, for the appellants (defendants).
Michael J. Cacace, with whom, on the brief, was
Nicholas W. Vitti, Jr., for the appellee (plaintiff).
Opinion
MOLL, J. The defendants, Atlantic Realty Company,
200 Atlantic, LLC, 210 Atlantic, LLC, 252 Atlantic Street,
LLC, and Safavieh Atlantic, LLC, appeal from the judg-
ment 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 judg-
ment 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 sum-
mary 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 simulta-
neously. 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 proce-
dural history are relevant to our resolution of this
appeal. In 1982, the plaintiff acquired commercial prop-
erty 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) provid-
ing 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, pursu-
ant to General Statutes § 47-37, it had acquired a pre-
scriptive 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 mem-
orandum of law, exhibits, and affidavits, as to count
two of its amended complaint alleging a prescriptive
easement. Among the affidavits submitted by the plain-
tiff 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 mem-
orandum 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 reply-
ing to the defendants’ objection to its motion for sum-
mary 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 alley-
way and a portion of the paved area leading to its
parking lot (claimed easement area). As relief, the plain-
tiff 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 submis-
sions, 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 alle-
gations. Additionally, the defendants filed amended spe-
cial 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 substan-
tively tracked the original five special defenses asserted
previously as to count two of the plaintiff’s prior com-
plaints. 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 por-
tion 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 defen-
dants 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 in light of its
recognition of the defendants’ superior claim to the
claimed easement area. On November 15, 2019, the
plaintiff filed a reply denying the allegations of the
amended special defenses.
On January 15, 2020, the court issued a memorandum
of decision granting the plaintiff’s motion for summary
judgment, as revised, and denying the defendants’ cross
motion for summary judgment. The court concluded
that ‘‘the plaintiff has established its right to summary
judgment as to its claim of prescriptive easement; it
has established that there is no material issue of fact
and that it has used the claimed easement area in a
manner that was open, visible, continuous, and uninter-
rupted for fifteen years and made under a claim of
right.’’ With regard to the defendants’ cross motion for
summary judgment, the court concluded that the defen-
dants had failed to negate any element of the plaintiff’s
prescriptive easement claim.6 As to the defendants’ ten
amended special defenses, the court rejected the five
defenses asserted for the first time in the defendants’
October 15, 2019 pleading as procedurally improper;
nevertheless, the court proceeded to discuss, and reject,
the merits of all ten defenses. As relief, the court (1)
declared that the plaintiff had a prescriptive easement
extending through the alleyway and over a portion of
the paved area leading to the parking lot located behind
its property,7 and (2) enjoined the defendants from
‘‘unreasonably interfering with the use of the prescrip-
tive easement,’’ which included ‘‘locking access to any
portion of the easement in a manner that interferes
with the plaintiff’s use of the easement area,’’ although
‘‘brief closures for maintenance type activities and for
construction type activities [were] presumptively per-
missible . . . .’’ This appeal followed. Additional facts
and procedural history will be set forth as necessary.
Before addressing the defendants’ claims, we set
forth the standard of review applicable to this appeal
and relevant legal principles. ‘‘In seeking summary judg-
ment, it is the movant who has the burden of showing
the nonexistence of any issue of fact. The courts are
in entire agreement that the moving party for summary
judgment has the burden of showing the absence of
any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. The courts hold
the movant to a strict standard. To satisfy his burden
the movant must make a showing that it is quite clear
what the truth is, and that excludes any real doubt as
to the existence of any genuine issue of material fact.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45].8 . . . Our review of the
trial court’s decision to grant [or to deny a] motion for
summary judgment is plenary.’’ (Footnote in original;
internal quotation marks omitted.) Kinity v. US Banc-
orp, 212 Conn. App. 791, 835–36, 277 A.3d 200 (2022).
The plaintiff’s operative complaint alleged a prescrip-
tive easement claim pursuant to § 47-37, which pro-
vides: ‘‘No person may acquire a right-of-way or any
other easement from, in, upon or over the land of
another, by the adverse use or enjoyment thereof,
unless the use has been continued uninterrupted for
fifteen years.’’ ‘‘The well established statutory elements
necessary to establish an easement by prescription are
that the use is (1) open and visible, (2) continuous and
uninterrupted for fifteen years, and (3) engaged in under
a claim of right.’’ (Internal quotation marks omitted.)
Faught v. Edgewood Corners, Inc., 63 Conn. App. 164,
168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776
A.2d 1150 (2001).
I
With respect to the trial court’s decision granting the
plaintiff’s motion for summary judgment, the defen-
dants claim that the court (1) lacked the authority to
grant the plaintiff’s motion because, in moving for sum-
mary judgment, the plaintiff failed to address their spe-
cial defenses, and (2) improperly determined that no
genuine issues of material fact exist vis-à-vis the plain-
tiff’s prescriptive easement claim. We agree in part with
the defendants’ first claim that the court lacked the
authority to render summary judgment in the plaintiff’s
favor, and, therefore, the court’s decision granting the
plaintiff’s motion for summary judgment must be
reversed and the case must be remanded for further
proceedings. Although our resolution of the defendants’
first claim is dispositive of the portion of the appeal
taken from the summary judgment rendered in the
plaintiff’s favor, because it is sufficiently likely to arise
on remand, we will also address the defendants’ second
claim. See Budlong & Budlong, LLC v. Zakko, 213 Conn.
App. 697, 714 n.14, 278 A.3d 1122 (2022) (‘‘[a]lthough our
resolution of the defendant’s first claim is dispositive
of this appeal, we also address the defendant’s second
claim because it is likely to arise on remand’’).
A
The defendants claim that the court lacked the
authority to grant the plaintiff’s motion for summary
judgment because, in moving for summary judgment,
the plaintiff did not address their special defenses. For
the reasons that follow, we agree in part with the defen-
dants.
The following additional procedural history is rele-
vant to our resolution of this claim. By the time that
the court heard oral argument on the parties’ cross
motions for summary judgment on September 23, 2019,
the defendants had asserted the following five special
defenses directed to the prescriptive easement claim
set forth in the plaintiff’s operative complaint: (1) failure
to state a claim on which relief can be granted on the
basis of the public’s use of the alleyway; see part I B
2 b of this opinion; (2) waiver; (3) estoppel; (4) unclean
hands; and (5) laches (original special defenses). In
its memorandum of law in support of its motion for
summary judgment, the plaintiff argued that the original
special defense asserting failure to state a claim was
meritless; however, the plaintiff did not address the
four other special defenses.
On October 15, 2019, approximately three weeks fol-
lowing oral argument, the defendants filed an answer
accompanied by amended special defenses directed to
the plaintiff’s operative complaint (October 15, 2019
pleading). In addition to reasserting the five original
special defenses, the defendants asserted five new spe-
cial defenses, which we summarized previously in this
opinion (new special defenses). The defendants did not
seek leave of the court to file the October 15, 2019
pleading.
In granting the plaintiff’s motion for summary judg-
ment, the court discussed the ten amended special
defenses asserted in the October 15, 2019 pleading. At
the outset, the court determined that the October 15,
2019 pleading was procedurally improper because the
defendants had failed either (1) to comply with Practice
Book § 10-619 by filing it within ten days after the plain-
tiff had filed its operative complaint or (2) to seek
permission to file it pursuant to Practice Book § 10-60.10
Additionally, insofar as the defendants had asserted
the five new special defenses, the court noted that the
defenses were raised after the court had heard oral
argument on the parties’ cross motions for summary
judgment, such that ‘‘the parties did not brief the issues
in the [new] special defenses . . . did not have an
opportunity to submit evidence relating to the new [spe-
cial defenses] (or identify ‘old’ evidence already before
the court that would be relevant), and did not have an
opportunity to argue the issues presented by the new
special defenses.’’ The court further noted that,
although the plaintiff had filed a reply denying the alle-
gations of the amended special defenses, it had not
consented in advance to the amendment and had no
opportunity to address the new special defenses in its
summary judgment submissions. The court continued:
‘‘Under these unique if not bizarre circumstances, the
court believes it appropriate to reject the new special
defenses that were added as a matter of fundamental
fairness.’’11 Notwithstanding its rejection of the new
special defenses as procedurally defective, the court
discussed, and rejected, the merits of all ten defenses.
On appeal, relying chiefly on Nationstar Mortgage,
LLC v. Mollo, 180 Conn. App. 782, 185 A.3d 643 (2018),
the defendants claim that the court 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 either by (1)
challenging the legal sufficiency of the defenses or (2)
submitting competent evidence to demonstrate that no
genuine issues of material fact exist vis-à-vis the
defenses. The defendants further contend that, insofar
as the court rejected the merits of their special defenses,
the court committed error by considering the defenses
sua sponte, that is, without the plaintiff having
addressed them in its summary judgment submissions.
We agree with the defendants only with regard to the
four original special defenses asserting waiver, estop-
pel, unclean hands, and laches.
In Mollo, which involved an appeal taken from a judg-
ment of strict foreclosure, the dispositive issue was
whether the trial court lacked the authority to grant
the plaintiff’s motion for summary judgment as to liabil-
ity only on the ground that, in moving for summary
judgment, the plaintiff had failed either to attack the
legal sufficiency of the defendant’s special defenses or
to submit competent evidence establishing that there
were no genuine issues of material fact with regard
to the defenses. Id., 784. In its operative motion for
summary judgment and supporting memorandum of
law, the plaintiff asserted that there were no genuine
issues of material fact with respect to the allegations
of its complaint. Id., 786. The motion for summary judg-
ment appeared on the short calendar of March 14, 2016,
for argument. Id., 787. Three days prior to the short
calendar hearing, on March 11, 2016, the defendant filed
(1) an answer, in which he denied that the plaintiff was
entitled to any relief or that the plaintiff could establish
that it was entitled to the equitable remedy of foreclo-
sure, (2) special defenses asserting unclean hands,
fraudulent inducement, and equitable estoppel, (3) a
counterclaim, and (4) an objection to the motion for
summary judgment, which was untimely pursuant to
Practice Book (2016) § 17-45. Id., 787–88. In his objec-
tion to the plaintiff’s motion for summary judgment,
the defendant argued that his special defenses were
legally sufficient and there were genuine issues of mate-
rial fact relating thereto. Id., 788. At the short calendar
hearing, the court overruled the defendant’s objection
and granted the plaintiff’s motion for summary judg-
ment.12 Id., 789. In doing so, ‘‘[t]he court made only
passing references to the defendant’s special defenses
. . . . The court indicated that it did not ‘see anything
wrong in the making of [the promissory note at issue]
except that [the defendant] made a bad bargain.’ ’’ Id.,
789–90. The court subsequently rendered a judgment
of strict foreclosure, from which the defendant
appealed. Id., 790.
On appeal, this court observed that rendering sum-
mary judgment as to liability only in the plaintiff’s favor
would have been proper ‘‘if the complaint and support-
ing affidavits had established an undisputed prima facie
case and the defendant had failed to assert any legally
sufficient special defense.’’ Id., 793. This court then
concluded that ‘‘the [trial] court lacked authority to
render summary judgment as to liability in favor of the
plaintiff with respect to the factual or legal viability
of the defendant’s special defenses because the issues
relating to the special defenses remained outside the
scope of the plaintiff’s motion for summary judgment.’’
Id., 796. This court recognized that, as a consequence
of the defendant’s ‘‘last-minute filing,’’ the plaintiff had
not addressed the defendant’s special defenses in its
summary judgment submissions. Id., 797. Nevertheless,
in light of the defendant’s special defenses, this court
determined that the plaintiff should have marked off
argument on the motion for summary judgment so as
to permit it to file ‘‘a new pleading addressing the special
defenses with an accompanying brief and/or competent
evidence sufficient to establish their legal insufficiency
or that no genuine issue of material fact exists.’’13 Id.,
798. As summarized by this court, ‘‘on the basis of the
facts of [the] case . . . the [trial] court acted in excess
of its authority when it raised and considered, sua
sponte, grounds for summary judgment not raised or
briefed by the plaintiff.’’ Id.; see also id., 790 n.11 (‘‘[w]e
disagree with the plaintiff’s position that, despite the
fact that its . . . motion for summary judgment did not
address the defendant’s special defenses, the court had
the authority to [decide] whether the defendant suffi-
ciently [pleaded] his special defenses . . . and
whether any deficiency could not be cured by replead-
ing’’ (internal quotation marks omitted)). Accordingly,
this court reversed the judgment rendered in favor of
the plaintiff and remanded the case for further proceed-
ings according to law. Id., 798.
Applying the rationale of Mollo to this appeal,14 we
conclude that, to invoke the trial court’s authority to
grant the plaintiff’s motion for summary judgment, the
plaintiff was obligated to address any special defenses
to its operative complaint that the defendants had
asserted properly in accordance with our rules of prac-
tice. The only special defenses meeting this requirement
were the five original special defenses, those being (1)
failure to state a claim on which relief can be granted
on the basis of the public’s use of the alleyway, (2)
waiver, (3) estoppel, (4) unclean hands, and (5) laches.
In its memorandum of law supporting its motion for
summary judgment, the plaintiff expressly addressed
the original special defense sounding in failure to state
a claim; however, the plaintiff’s summary judgment sub-
missions were silent as to the other four defenses.
Accordingly, the court improperly adjudicated, sua
sponte, the four original special defenses asserting
waiver, estoppel, unclean hands, and laches, such that
the court committed error in granting the plaintiff’s
motion for summary judgment.15
We reach a different conclusion, however, with
respect to the five new special defenses that the defen-
dants asserted in the October 15, 2019 pleading. The
court rejected the new special defenses on, inter alia,
procedural grounds because the defendants had filed
them approximately three weeks after oral argument
on the parties’ cross motions for summary judgment,
well beyond the filing period prescribed by Practice
Book § 10-61, and without the court’s permission. In
other words, the new special defenses were not prop-
erly before the court, thereby absolving the plaintiff of
any obligation to address them in order to invoke the
court’s authority vis-à-vis its motion for summary judg-
ment.16
In sum, because the plaintiff did not address the
defendants’ four original special defenses asserting
waiver, estoppel, unclean hands, and laches in its sum-
mary judgment submissions, we conclude that the plain-
tiff failed to invoke the court’s authority to grant its
motion for summary judgment and that the court
improperly addressed these defenses sua sponte.
Accordingly, we conclude that the court improperly
granted the plaintiff’s motion for summary judgment.17
B
The defendants also claim that the court improperly
determined that there are no genuine issues of material
fact as to the plaintiff’s prescriptive easement claim.
There are two subsets to this claim. First, the defen-
dants assert that the court committed error in ‘‘disre-
gard[ing]’’ a portion of the personal affidavit of Michael
(Michael affidavit) that they filed as part of their sum-
mary judgment submissions. Second, the defendants
contend that, even if the court properly ‘‘disregarded’’
the relevant portion of the Michael affidavit, there are
genuine issues of material fact as to whether (1) the
plaintiff’s use of the alleyway was under a claim of
right, and (2) the plaintiff’s use and the public’s use of
the alleyway were indistinguishable. These contentions
are unavailing.
Before continuing with the merits of each of these
contentions, we first highlight that the court did not
disregard, or ignore, a portion of the Michael affidavit.
To the contrary, the court expressly considered it. As
we set forth in more detail in part I B 1 of this opinion,
the court explained that it rejected any evidentiary value
of Michael’s statement as to frequency of use because
it was conclusory rather than factual and that, as a
result of the lack of foundation, Michael’s opinion as
to frequency of use did not constitute competent evi-
dence for purposes of Practice Book § 17-46. Thus,
mindful of the court’s actual treatment of the Michael
affidavit, we consider the defendants’ contentions.
1
The defendants argue that the court erred in rejecting
a portion of the Michael affidavit on the basis that
it did not constitute competent evidence pursuant to
Practice Book § 17-46.18 We disagree.
Practice Book § 17-46 provides in relevant part: ‘‘Sup-
porting and opposing affidavits shall be made on per-
sonal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein. . . .’’ Section 17-46 ‘‘sets forth three
requirements necessary to permit the consideration of
material contained in affidavits submitted in a summary
judgment proceeding. The material must: (1) be based
on ‘personal knowledge’; (2) constitute facts that would
be admissible at trial; and (3) affirmatively show that
the affiant is competent to testify to the matters stated
in the affidavit.’’ Barrett v. Danbury Hospital, 232 Conn.
242, 251, 654 A.2d 748 (1995). ‘‘Affidavits that fail to
meet the criteria of . . . § 17-46 are defective and may
not be considered to support the judgment. Defects in
affidavits include such things as assertions of facts or
conclusory statements.’’ U.S. Bank Trust, N.A. v. Dal-
las, Superior Court, judicial district of Litchfield,
Docket No. CV-XX-XXXXXXX-S (May 24, 2021) (reprinted
at 213 Conn. App. 487, 491, 278 A.3d 1141), aff’d, 213
Conn. App. 483, 278 A.3d 1138 (2022); see also Stuart
v. Freiberg, 316 Conn. 809, 828, 116 A.3d 1195 (2015)
(averments in affidavit that are conclusory are ‘‘inade-
quate to defeat a summary judgment motion’’); Hoskins
v. Titan Value Equities Group, Inc., 252 Conn. 789,
793–94, 749 A.2d 1144 (2000) (‘‘[a] conclusory assertion
. . . does not constitute evidence sufficient to establish
the existence of a disputed material fact for purposes
of a motion for summary judgment’’); Black’s Law Dic-
tionary (8th Ed. 2004) p. 308 (defining ‘‘conclusory’’ as
‘‘[e]xpressing a factual inference without stating the
underlying facts on which the inference is based’’). The
question before us is whether the court properly
rejected the relevant portion of the Michael affidavit
on the basis that the averments contained therein were
conclusory.
The following additional procedural history is rele-
vant to our disposition of this claim. In support of the
plaintiff’s motion for summary judgment, the plaintiff
submitted personal affidavits of Silver, Golub, and
Blauner. Silver and Golub averred that they had been
members of the plaintiff since 1982 and were partners
at a law firm now known as Silver Golub & Teitell
LLP (SGT), which moved its offices into the plaintiff’s
property in 1982. Silver and Golub further averred, indi-
vidually or collectively, that, between 1982 and 2014,
(1) they used the claimed easement area to access the
plaintiff’s parking lot ‘‘on a daily basis,’’ and (2) the
claimed easement area was used ‘‘on a daily basis’’ by
(a) the plaintiff’s members and employees, (b) SGT’s
personnel, business invitees, family, and friends, and (c)
the plaintiff’s other tenants and their invitees. Blauner
averred that, since 1990, he has been employed either
by the plaintiff or by SGT and that, during his years
of employment prior to 2015, (1) he used the claimed
easement area ‘‘regularly and routinely’’ to access the
plaintiff’s parking lot and (2) other SGT personnel uti-
lized the claimed easement area ‘‘on a regular daily
basis . . . .’’
In opposing the plaintiff’s motion for summary judg-
ment, the defendants submitted, inter alia, the Michael
affidavit. Michael averred that, beginning in June, 1988,
he was ‘‘primarily responsible for the day-to-day man-
agement of . . . Safavieh Atlantic, LLC,’’ and that he
was present at the 234 Atlantic Street and 252 Atlantic
Street properties ‘‘almost daily until the early 2000s,’’
after which he ‘‘frequently visited’’ the properties,
‘‘although not on a daily basis.’’19 Michael further
averred that, ‘‘during [his] time on the [d]efendants’
propert[ies], [he] saw [Silver and Blauner] use the
[a]lleyway to access [the plaintiff’s property] only a
couple of times,’’ that ‘‘[a]t some point, [the defendants]
learned that . . . Silver would use the [a]lleyway from
time to time and that . . . Blauner would use the
[a]lleyway on occasion to access [the] [p]laintiff’s park-
ing lot,’’ and that he ‘‘[did] not know of any additional
or unique use of the [a]lleyway by [the] [p]laintiff.’’
Moreover, Michael averred that (1) other than with
respect to Silver and Blauner, he did not know what
vehicles the plaintiff’s owners, employees, clients, or
tenants drove, and (2) there are no windows in the
defendants’ buildings that overlook the alleyway.
In granting the plaintiff’s motion for summary judg-
ment, the court determined that Michael’s averments
regarding the frequency with which the plaintiff,
through its representatives, used the alleyway did not
constitute competent evidence pursuant to Practice
Book § 17-46 because they were ‘‘conclusory rather
than factual, absent any indication of regularity and
frequency of observations.’’ The court further
explained: ‘‘An assertion that the principals of the defen-
dants—chiefly Michael—have seen only occasional
(rare) use of the claimed easement20 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 inten-
sity of observation), support a reasonable inference that
the event occurs only infrequently.
‘‘From a different perspective, this is a variation of
the difficulties in proving a negative—this is an attempt
to prove an almost negative. Merely stating only occa-
sional 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 state-
ment 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
defendants’ principals spend extensive periods of time
watching persons driving through the alleyway and into
the [paved] area behind their buildings. Indeed,
[Michael and Arash] testified that there are no windows
on the sides of the buildings providing a direct view of
the alleyway, and that there are no windows in the rears
of the buildings, such that observations would only be
made at times they were physically outside and presum-
ably to the rear of the buildings (since there would not
seem to be much reason to stand in the alleyway).
Without more, it would be unreasonable to infer that
someone working in a commercial enterprise with no
windows facing in the relevant directions can character-
ize the frequency of use of blocked from view passage-
ways by specific drivers of vehicles.
‘‘Additionally, [Silver and Blauner] are only a small
percentage of the class of claimed users—other employ-
ees of the law firms with offices in the plaintiff’s building
and their clients and invitees. And, almost trivially, per-
sons going to the plaintiff’s building early in the morn-
ing, before the defendants’ principals arrive, would be
unseen. The defendants indicated very limited familiar-
ity with the plaintiff’s personnel—apparently knowing/
recognizing only [Silver and Blauner] . . . . Therefore,
they would have no way of knowing whether someone
seen driving over the claimed easement area was a
client or employee or otherwise an invitee to the plain-
tiff’s premises unless they made a conscious effort to
watch the person so as to determine the eventual desti-
nation.’’21 (Emphasis omitted; footnoted added.) In sum,
the court concluded that, ‘‘[a]bsent a foundation, a state-
ment as to frequency of use (and, especially, [one that
is] limited to only two of the people who worked in the
building, and ignoring the unknown drivers [Michael]
might have seen heading to the plaintiff’s building as
actual or potential clients) is no better than conclusory
if not speculative. Absent a foundation, statements as
to claimed frequency of use must be rejected pursuant
to Practice Book § 17-46.’’
The defendants maintain that the court improperly
rejected Michael’s averments regarding the frequency
of the plaintiff’s use of the alleyway. They argue that,
in light of the evidence reflecting that Michael was
present at 234 Atlantic Street and 252 Atlantic Street
almost daily between 1988 and the early 2000s and
charged with managing the premises, there is a ‘‘logical
inference that [he] was not only inside of the premises
during his work week, [but that] in order to maintain
the propert[ies], he necessarily was frequently and regu-
larly outside and about the grounds of the propert[ies],
on the sidewalk in front of the propert[ies], in the alley-
way, and outside in the parking lot and the rear of the
defendants’ properties,’’ such that, ‘‘on a daily basis, he
was capable of and in fact made frequent observations
as to the vehicular traffic moving through the alleyway
and towards the rear of the building[s].’’ The defendants
also contend that Blauner’s affidavit buttresses their
position, as Blauner averred that, while he was driving
to and from the plaintiff’s parking lot, he ‘‘often’’ saw
Michael.22 We are not persuaded.
First, we do not agree that Michael’s averments logi-
cally infer that he was ‘‘frequently and regularly outside’’
observing vehicles traversing the alleyway. Although
Michael’s regular presence on the premises in his role
as the day-to-day manager of the defendants’ business
may infer that he witnessed some vehicular traffic
around the defendants’ properties, we are not con-
vinced that it follows, without more specific averments,
that he was making ‘‘frequent observations’’ daily as
proposed by the defendants. Additionally, we do not
consider Blauner’s averment that he ‘‘often’’ encoun-
tered Michael while driving to and from the plaintiff’s
parking lot as providing a sufficient foundation to ren-
der Michael’s averments as to the plaintiff’s frequency
of use competent under Practice Book § 17-46.
Second, assuming arguendo that the record demon-
strates that Michael was making ‘‘frequent observa-
tions’’ of vehicular traffic on a daily basis, the defen-
dants cannot overcome the other flaw recognized by
the court, namely, that Michael’s averments focused
only on two individuals associated with the plaintiff,
Silver and Blauner. Michael did not aver that he wit-
nessed Golub or others with connections to the plaintiff
utilize the alleyway infrequently; rather, he averred that
he ‘‘[did] not know of any additional or unique use of
the [a]lleyway by [the] [p]laintiff.’’ Moreover, Michael
averred that, although he recognized the vehicles driven
by Silver and Blauner, he did not know which vehicles
the plaintiff’s other owners, employees, clients, or ten-
ants drove. Given his limited familiarity with the plain-
tiff, Michael’s averments as to the plaintiff’s frequency
of use did not constitute competent evidence under
Practice Book § 17-46.
In sum, we conclude that the court properly rejected
the relevant portion of the Michael affidavit pursuant
to Practice Book § 17-46.
2
The defendants next assert that, even if the court
properly rejected the relevant portion of the Michael
affidavit, there are genuine issues of material fact
regarding whether the plaintiff’s use of the alleyway
was (1) under a claim of right, and (2) indistinguishable
from the public’s use of the same.23 We disagree.
a
The defendants contend that the court improperly
determined that there are no genuine issues of material
fact as to whether the plaintiff’s use of the alleyway
was under a claim of right.24 We are not persuaded.
‘‘Use made under a claim of right means use that is
made without recognition of the rights of the owner of
the servient tenement. . . . To establish an easement
by prescription it is absolutely essential that the use be
adverse. It must be such as to give a right of action in
favor of the party against whom it has been exercised.
. . . The use must occur without license or permission
and must be unaccompanied by any recognition of [the
right of the owner of the servient tenement] to stop
such use. . . .
‘‘The claim of right requirement serves to ensure that
permissive uses will not ripen into easements by pre-
scription by requiring that the disputed use be adverse
to the rights of the owner of the servient tenement.
. . . Nevertheless, it is not necessary in order that a
use be adverse that it be made either in the belief or
under a claim that it is legally justified. . . . Instead,
the essential quality is that the use not be made in
subordination to those against whom it is claimed to be
adverse.’’ (Citations omitted; internal quotation marks
omitted.) Crandall v. Gould, 244 Conn. 583, 590–91, 711
A.2d 682 (1998).
‘‘The requirement that the [use] must be exercised
under a claim of right does not necessitate proof of a
claim actually made and brought to the attention of the
owner . . . . It means nothing more than a [use] as of
right, that is, without recognition of the right of the
landowner, and that phraseology more accurately
describes it than to say that it must be under a claim
of right.’’ (Internal quotation marks omitted.) Cirinna
v. Kosciuszkiewicz, 139 Conn. App. 813, 822, 57 A.3d
837 (2012); see also Wadsworth v. Zahariades, 1 Conn.
App. 373, 376, 472 A.2d 29 (1984) (‘‘[t]he term ‘under a
claim of right’ denotes a user who does not recognize
the rights of an owner of a servient estate’’). ‘‘[When]
there is no proof of an express permission from the
owner of the servient estate, on the one hand, or of an
express claim of right by the person or persons using
the way, on the other, the character of the [use], whether
adverse or permissive, can be determined as an infer-
ence from the circumstances of the parties and the
nature of the [use].’’ (Internal quotation marks omitted.)
Cirinna v. Kosciuszkiewicz, supra, 822.
It is well established that a ‘‘[u]se by express or
implied permission or license cannot ripen into an ease-
ment by prescription.’’ (Internal quotation marks omit-
ted.) Gallo-Mure v. Tomchik, 78 Conn. App. 699, 705,
829 A.2d 8 (2003). ‘‘There is a distinction made in our
case law between the terms ‘permission’ and ‘acquies-
cence’ in the context of a prescriptive easement claim.
On this point, the following excerpt from Phillips v.
Bonadies, [105 Conn. 722, 726, 136 A. 684 (1927)] is
particularly illuminating: ‘In the very nature of [pre-
scriptive easement] case[s] . . . every such user is by
permission of the owner of the servient tenement in
the sense that he permits it to continue without exercis-
ing his right to terminate it. A permissive user therefore
as distinguished from one exercised under a claim of
right is not to be inferred from mere passive acquies-
cence. The facts and circumstances must be such as
to warrant the inference of a license exercised in subor-
dination to the rights of the owner of the soil and which
he may revoke at any time.’ . . . As the Phillips court
admonished, permissive use should not be confused
with ‘passive acquiescence.’ The two terms have vastly
different impacts. If there is permission granted to use
the contested property, then the user of the land is
acting in subordination to the ownership rights of the
servient landowner, and the claim of prescriptive ease-
ment arising out of his use is negated. In contrast, pas-
sive acquiescence does not indicate such subordination
and permits the finding of a prescriptive easement. Id.For this reason, Phillips emphasized the importance of
an indication of subordinate conduct in determining
whether there was permissive or acquiescent conduct.’’
(Emphasis omitted.) Gallo-Mure v. Tomchik, supra,
707–708.
The following additional procedural history is rele-
vant to our resolution of this claim. In support of the
plaintiff’s motion for summary judgment, Silver and
Golub averred, individually or collectively, in relevant
part as follows. In 1982, the plaintiff purchased 184
Atlantic Street by way of a warranty deed recorded
on the Stamford land records. Prior to purchasing 184
Atlantic Street, the plaintiff was told by the prior owner
that whoever owned 184 Atlantic Street also possessed
deeded easement rights to use the claimed easement
area to access the property’s parking lot. After acquiring
184 Atlantic Street in 1982, and with the understanding
that they had deeded easement rights to do so, Silver,
Golub, and the plaintiff’s other members used the
claimed easement area to access the plaintiff’s parking
lot. Additionally, for more than thirty years thereafter
and without seeking or receiving permission from the
defendants, the plaintiff’s members, employees, busi-
ness invitees, tenants, and invitees of its tenants used
the claimed easement area to access the plaintiff’s park-
ing lot. The plaintiff relied on this evidence to claim
that there was no genuine issue of material fact that it
had used the claimed easement area under a claim
of right.
In support of the defendants’ objection to the plain-
tiff’s motion for summary judgment, Michael and Arash
averred, individually or collectively, in relevant part as
follows. During renovations performed on 234 Atlantic
Street in 1988 and on 252 Atlantic Street in 1994, which
occurred immediately after each property had been pur-
chased, the defendants blocked the alleyway on several
occasions for periods ranging from one day to one
week. In addition, the defendants closed the alleyway
periodically to perform maintenance and repaving. The
plaintiff never objected to or inquired as to the alley-
way’s closures. This evidence, the defendants argued,
raised a genuine issue of material fact as to whether
the plaintiff’s use was under a claim of right because it
indicated that the plaintiff had recognized their superior
right to the alleyway.
In addition, the defendants argued that there was a
genuine issue of material fact as to the claim of right
requirement in light of evidence indicating that they
gave implied permission to the plaintiff to use the alley-
way as a neighborly accommodation. In support of this
argument, the defendants relied on affidavits and depo-
sition testimony indicating that, inter alia, (1) Michael
and Arash were aware of, and did not object to, the
plaintiff’s use of the alleyway, (2) Blauner exchanged
pleasantries with Michael, (3) the plaintiff often allowed
the defendants to use its parking lot during weekends,
and (4) the defendants permitted the plaintiff to use
parking spots located behind 200 Atlantic Street and
210 Atlantic Street.
In granting the plaintiff’s motion for summary judg-
ment, the court concluded that there were no genuine
issues of material fact that the plaintiff had used the
claimed easement area under a claim of right. The court
determined that, irrespective of whether the plaintiff
owned valid deeded easement rights to the claimed
easement area, there was no genuine issue of material
fact that the plaintiff believed that it owned such rights.
Additionally, the court rejected the defendants’ argu-
ments that the evidence indicated that (1) the plaintiff
had recognized their superior right vis-à-vis the alley-
way and (2) they had given the plaintiff implicit permis-
sion to use the alleyway as a neighborly accommoda-
tion.
On appeal, the defendants assert that there are genu-
ine issues of material fact as to whether the plaintiff
used the alleyway under a claim of right in light of the
evidence demonstrating that they occasionally closed
the alleyway during the prescriptive period, thereby
restricting the plaintiff’s access to the alleyway, without
objection or inquiry from the plaintiff. The defendants
maintain that the plaintiff’s inaction following the alley-
way’s closures indicated that the plaintiff acknowl-
edged their superior right to the alleyway. We disagree
with the supposition that the plaintiff’s failure to
respond to the alleyway’s closures, which were inter-
mittent, implies that the plaintiff recognized the defen-
dants’ ability to stop the plaintiff’s use. See, e.g., Frech
v. Piontkowski, 296 Conn. 43, 59, 994 A.2d 84 (2010)
(rejecting defendants’ claim that there was insufficient
evidence adduced at trial supporting trial court’s deter-
mination that plaintiffs used defendants’ reservoir
under claim of right when evidence demonstrated, inter
alia, that plaintiffs did not respond to defendants’ ‘‘inter-
mittent attempts’’ to prevent plaintiffs’ use of reservoir).
Given that ‘‘[p]rescriptive easements, unlike title gained
by adverse possession, do not require exclusive use by
the claimant’’; Gallo-Mure v. Tomchik, supra, 78 Conn.
App. 706 n.4; we cannot conclude that the defendants’
sporadic, temporary closures of the alleyway to perform
maintenance and repairs, even to the sole benefit of
the defendants, operated to undermine the plaintiff’s
claim of right, particularly when the record, viewed in
the light most favorable to the defendants, reflects that
the plaintiff resumed use of the alleyway when it
reopened and the closures prevented all users, not only
the plaintiff, from traveling across the alleyway.
The defendants also claim that there are genuine
issues of material fact because of evidence indicating
that they had granted the plaintiff implied permission
to use the alleyway as a neighborly accommodation.
The defendants cite evidence reflecting that they did
not object to the plaintiff’s known use of the alleyway,
that the parties were friendly with one another, and
that the parties shared parking spaces under certain
circumstances. None of this evidence creates genuine
issues of material fact. A landowner’s mere failure to
object to a claimant’s use, notwithstanding knowledge
of the claimant’s use, does not signify implied permis-
sion. See id., 707–708 (discussing difference between
permission and passive acquiescence). Moreover, we
deem it far too speculative to infer implied permission
from evidence indicating that the parties had a friendly
relationship and shared parking spaces at times, which
are wholly disconnected from the plaintiff’s use of the
alleyway.25
In sum, we conclude that the court did not err in
concluding that there were no genuine issues of mate-
rial fact that the plaintiff’s use of the alleyway was
under a claim of right.26
b
The defendants also assert that the court improperly
determined that there are no genuine issues of material
fact as to whether the plaintiff’s use and the public’s
use of the alleyway were indistinguishable. We reject
this claim.
‘‘Where the use of a right-of-way is in common with
the public, the common use is considered to negate a
presumption of grant to any individual use. In such a
case, the individual user must, in order to establish an
independent prescriptive right, perform some act of
which the servient owner is aware and which clearly
indicates his individual claim of right. . . . A finding
that the use made by the claimant and his predecessors
in title was not different from that made by the general
public is fatal to the establishment of any prescriptive
right in the claimant.’’ (Citation omitted; internal quota-
tion marks omitted.) Gioielli v. Mallard Cove Condo-
minium Assn., Inc., 37 Conn. App. 822, 829–30, 658
A.2d 134 (1995).
The following additional procedural history is rele-
vant to our disposition of this claim. In its memorandum
of law in support of its motion for summary judgment,
acknowledging that the defendants had raised the ‘‘pub-
lic use’’ doctrine as a special defense, the plaintiff
argued that there was no genuine issue of material fact
that its use of the claimed easement area was distin-
guishable from the public’s use because, unlike the
plaintiff, the public never used the entirety of the
claimed easement area for the purpose of reaching the
plaintiff’s parking lot.
In support of the defendants’ objection to the plain-
tiff’s motion for summary judgment, Arash and Michael
averred that, following the purchase of 234 Atlantic
Street in 1988, they observed members of the general
public use the alleyway (1) to access parking spaces
located in a portion of the paved area behind 200 Atlan-
tic Street and 210 Atlantic Street, some of whom would
then walk to patronize businesses fronting on Atlantic
Street, or (2) as a shortcut to reach a nearby mall via
the driveway providing ingress and egress to the paved
area. They further averred that they did not observe
the plaintiff use the alleyway in any ‘‘distinct’’ manner
relative to the general public. The defendants relied on
this evidence to argue that there were genuine issues
of material fact as to whether the plaintiff’s use of the
alleyway was indistinguishable from the public’s use.
In granting the plaintiff’s motion for summary judg-
ment, the court determined that there were no genuine
issues of material fact that the plaintiff’s use of the
alleyway and the paved area, collectively, was distin-
guishable from the public’s use of the same. The court
reasoned that, although there was a partial overlap in
the routes used by the plaintiff and the public to traverse
the alleyway and the paved area, there was a segment
of the paved area adjacent to the plaintiff’s parking lot
that the public did not utilize, which was sufficient to
distinguish the plaintiff’s use of the alleyway and the
paved area from that of the public’s.27
On appeal, the defendants do not contest the court’s
determination that the plaintiff used a portion of the
paved area that the public did not, which was the foun-
dation of the court’s conclusion that there was no genu-
ine issue of material fact that the plaintiff’s use of the
alleyway and the paved area was distinguishable from
the public’s use. Instead, the defendants contend that
the court committed error by failing to compare the
plaintiff’s use and the public’s use of the alleyway only,
without considering the manner in which the paved
area was utilized. The defendants iterate their position
that the plaintiff owns a deeded easement right to a
portion of the paved area and, as such, the plaintiff
cannot establish a prescriptive easement over the same.
See footnote 23 of this opinion. Consequently, the defen-
dants posit, any usage of the paved area is irrelevant
to the issue of whether a prescriptive easement exists
as to the alleyway. The defendants further contend that,
when the issue is properly framed, there are genuine
issues of material fact as to whether the plaintiff’s use
and the public’s use of the alleyway were indistinguish-
able.
The defendants’ claim merits only a brief discussion.
In its operative complaint, the plaintiff alleged that it
had acquired a prescriptive easement over both the
alleyway and a portion of the paved area for the purpose
of accessing its parking lot from Atlantic Street, and
the plaintiff’s revised motion for summary judgment
sought summary judgment as to that claim. At no point
prior to asserting their amended second special defense
in the October 15, 2019 pleading did the defendants
claim that the plaintiff has a deeded easement right to
a portion of the paved area,28 and the court deemed
that defense to be procedurally improper.29 Thus, the
court conducted the correct analysis in comparing the
uses by the plaintiff and the public of the alleyway and
the paved area collectively, and, therefore, we reject
the defendants’ claim.
II
In addition to challenging the trial court’s decision
granting the plaintiff’s motion for summary judgment,
the defendants claim that the court improperly denied
their cross motion for summary judgment. The limited
basis of this claim is that, as a matter of law, the plaintiff
is precluded from asserting both deeded and prescrip-
tive easement rights, and, therefore, the defendants are
entitled to summary judgment. We reject this claim.
The following additional procedural history is rele-
vant here. After withdrawing counts one and three of
its amended complaint, which alleged deeded easement
rights to the alleyway and a portion of the paved area,
respectively, the plaintiff filed its operative, one count
complaint alleging a prescriptive easement right to the
claimed easement area. The operative complaint set
forth certain allegations referencing deeded rights vis-
à-vis the claimed easement area. Paragraph 7 alleged
that the prior owner of 184 Atlantic Street informed the
plaintiff ‘‘that 184 Atlantic [Street] had deeded rights
of access to Atlantic Street over the [claimed easement
area].’’ Paragraphs 8 and 9 alleged that the deeds of prior
owners of 184 Atlantic Street contained ‘‘easements
authorizing [the] use of the [claimed easement area]
. . . .’’ Paragraph 25 alleged: ‘‘The plaintiff’s original
warranty deed from [the prior owner of 184 Atlantic
Street] inadvertently failed to properly reflect the plain-
tiff’s right to use the [claimed easement area] to travel
between Atlantic Street and the 184 Atlantic [Street]
parking lot. Although the inadvertent error in the deed
was corrected by a subsequent deed from [the prior
owner of 184 Atlantic Street] recorded on the Stamford
land records in 2015, the defendants take the position
that the easement rights provided in the plaintiff’s 2015
(corrected) deed are invalid and that the plaintiff has
no deeded right to use the [claimed easement area].’’
During oral argument on the parties’ cross motions
for summary judgment, for the first time, the defendants
argued that the plaintiff’s prescriptive easement claim
was untenable in light of the allegations in paragraphs
7, 8, 9, and 25 of its operative complaint, which,
according to the defendants, indicated that the plaintiff
was alleging deeded easement rights. The defendants
maintained that the plaintiff could not assert both pre-
scriptive and deeded easement rights, as the deeded
easement right would negate the adversity element of
a prescriptive easement claim. In response, the plaintiff
argued that the purpose of paragraphs 7, 8, 9, and 25
of the operative complaint was to set forth ‘‘the belief
of [the plaintiff] that [it] had rights to use [the claimed
easement area] and that [such use] was adverse to the
other property owner[s] and that [the plaintiff] didn’t
need permission [and] never asked for permission.’’
The plaintiff further iterated that it ‘‘[chose] to proceed
solely on the prescriptive easement matter here.’’
On the record, the court questioned whether the
plaintiff was asserting deeded easement rights, observ-
ing that the plaintiff had withdrawn and abandoned
counts one and three of its prior complaints. The court
further construed the allegations in the operative com-
plaint referencing deeded easement rights as indicating
that (1) the plaintiff held a belief that it had deeded
easement rights to the claimed easement area and (2)
there is a dispute as to whether such deeded easement
rights exist, such that the plaintiff decided not to pursue
a claim seeking to establish deeded easement rights.
Additionally, the court rejected, as speculative, an argu-
ment raised by the defendants that the plaintiff could
seek to resurrect its deeded easement claims if its pre-
scriptive easement claim failed.
Approximately three weeks following argument on
the parties’ cross motions for summary judgment, the
defendants filed the October 15, 2019 pleading directed
to the plaintiff’s operative complaint. In their amended
first special defense, the defendants alleged that the
plaintiff’s prescriptive easement claim failed because,
in its original complaint and in its amended complaint,
the plaintiff affirmatively alleged that it had deeded
easement rights to the claimed easement area.
In granting the plaintiff’s motion for summary judg-
ment, the court rejected the October 15, 2019 pleading,
including the defendants’ amended first special defense,
as procedurally improper. See part I A of this opinion.
In further discussing the amended first special defense,
the court determined that (1) the plaintiff was not pro-
hibited from pleading both prescriptive and deeded
easement rights as alternative theories, and (2) the
plaintiff had abandoned its deeded easement claims,
instead pursuing its prescriptive easement claim only,
such that the existence of deeded easement rights was
no longer an issue before the court and the ‘‘historical
existence of past claims of deeded easement rights is
not a defense to the prescriptive easement claim before
the court.’’
On appeal, the defendants assert that, as a matter of
law, the plaintiff cannot seek to establish both deeded
and prescriptive easements, and, therefore, they are
entitled to summary judgment vis-à-vis their cross
motion for summary judgment.30 This claim is untenable
for two reasons.
First, this issue was not properly raised before the
trial court. Nowhere in their summary judgment submis-
sions did the defendants assert that they were entitled
to summary judgment on this ground. The defendants
presented this issue for the first time during oral argu-
ment on the parties’ cross motions for summary judg-
ment, and they later raised it in their October 15, 2019
pleading by way of their amended first special defense,
which the court deemed to be procedurally improper.
The defendants do not challenge on appeal the court’s
rejection of this claim on procedural grounds, and, thus,
we need not reach the merits of this claim.
Second, assuming arguendo that the defendants prop-
erly raised this claim before the trial court, the claim
fails because the plaintiff abandoned its deeded ease-
ment claims by withdrawing counts one and three of
its amended complaint and, thereafter, by filing its oper-
ative complaint alleging a prescriptive easement over
the claimed easement area. Whether the plaintiff pre-
viously had alleged deeded easement rights is of no
moment.31 Moreover, insofar as the operative complaint
contained allegations referencing deeded easements,
we construe those allegations as (1) evincing a belief
by the plaintiff that it possessed deeded easement rights
during the prescriptive period, which was germane to
the claim of right element of the plaintiff’s prescriptive
easement claim, and (2) recognizing that there is a dis-
pute as to whether the plaintiff owns deeded rights,
such that the plaintiff was abandoning its pursuit of
its deeded easement claims in favor of a prescriptive
easement claim. Thus, after it had filed its operative
complaint, the plaintiff was not alleging both deeded
and prescriptive easement rights simultaneously.
In sum, we reject the defendants’ claim that the court
improperly denied their cross motion for summary judg-
ment.
The judgment is reversed only as to the decision
granting the plaintiff’s motion for summary judgment
and the case is remanded for further proceedings
according to law; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
‘‘The denial of a motion for summary judgment is ordinarily not an
appealable final judgment; however, if parties file cross motions for summary
judgment and the court grants one and denies the other, this court has
jurisdiction to consider both rulings on appeal. See Misiti, LLC v. Travelers
Property Casualty Co. of America, 132 Conn. App. 629, 630 n.2, 33 A.3d
783 (2011), [aff’d, 308 Conn. 146, 61 A.3d 485 (2013)].’’ Hannaford v. Mann,
134 Conn. App. 265, 267 n.2, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42
A.3d 391 (2012).
2
For ease of discussion, we address the defendants’ claims in a different
order than they are presented in the defendants’ principal appellate brief.
3
We note that there is evidence in the record suggesting that 210 Atlantic
Street was purchased sometime between 2005 and 2007. In their respective
summary judgment submissions filed in this matter, however, the parties
appeared to agree that the defendants acquired 210 Atlantic Street in 2014.
Thus, we consider it to be undisputed that 210 Atlantic Street was acquired
in 2014.
4
The parties do not appear to dispute that, in addition to the alleyway,
there is a driveway that provides ingress to and egress from the paved area,
although that driveway does not connect directly to Atlantic Street.
5
The second, third, fourth, and fifth special defenses were identical with
respect to all three counts of the plaintiff’s original complaint. The first
special defense set forth distinct allegations as to each count.
6
The court also determined that, insofar as the defendants had moved
for summary judgment on the first and third counts of the plaintiff’s amended
complaint, which had been withdrawn, the defendants’ cross motion for
summary judgment was moot.
7
Specifically, the court ruled that the plaintiff had a prescriptive easement
over (1) the full width of the entire alleyway and (2) a ten foot path in the
portion of the paved area behind 210 Atlantic Street and 234 Atlantic Street
that continued through the portion of the paved area behind 200 Atlantic
Street, excluding a segment that had been used for parking, and up to the
boundary of the plaintiff’s property.
8
‘‘Practice Book § 17-45 (a) provides: ‘A motion for summary judgment
shall be supported by appropriate documents, including but not limited to
affidavits, certified transcripts of testimony under oath, disclosures, written
admissions and other supporting documents.’ ’’ Kinity v. US Bancorp, 212
Conn. App. 791, 836 n.14, 277 A.3d 200 (2022).
9
Practice Book § 10-61 provides: ‘‘When any pleading is amended the
adverse party may plead thereto within the time provided by Section 10-8
or, if the adverse party has already pleaded, alter the pleading, if desired,
within ten days after such amendment or such other time as the rules of
practice, or the judicial authority, may prescribe, and thereafter pleadings
shall advance in the time provided by that section. If the adverse party fails
to plead further, pleadings already filed by the adverse party shall be regarded
as applicable so far as possible to the amended pleading.’’
10
Pursuant to Practice Book § 10-60 (a), except as provided in Practice
Book § 10-66, which governs amendments to statements of amounts in
demand, a pleading may be amended ‘‘(1) [b]y order of judicial authority;
or (2) [b]y written consent of the adverse party; or (3) [b]y filing a request
for leave to file an amendment . . . .’’
11
The court determined that the five original special defenses reasserted
by the defendants in the October 15, 2019 pleading were not procedurally
improper.
12
In Mollo, the plaintiff’s counsel was present at the beginning of the short
calendar hearing, but the defendant’s counsel was not. Nationstar Mortgage,
LLC v. Mollo, supra, 180 Conn. App. 788. The plaintiff’s counsel argued that
the defendant’s objection to its motion for summary judgment as to liability
only was untimely. Id., 788–89. Alternatively, if the court were to consider
the defendant’s objection, the plaintiff’s counsel argued that the plaintiff
should be granted additional time to amend its motion for summary judg-
ment. Id., 789. Without the defendant’s counsel present, the court overruled
the defendant’s objection and granted the plaintiff’s motion. Id. Later that
day, while the plaintiff’s counsel was still present, the defendant’s counsel
arrived, and the court agreed to rehear argument. Id. After hearing additional
argument, the court again overruled the defendant’s objection and main-
tained its decision granting the plaintiff’s motion. Id.
13
This court noted that it did not countenance the defendant’s late filing
of his objection to the plaintiff’s motion for summary judgment as to liability
only, but that the defendant’s conduct did ‘‘not justify the [trial] court’s
consideration of the plaintiff’s motion as having adequately raised and
refuted the special defenses so as to justify granting summary judgment.’’
Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 795 n.14.
14
Although Mollo concerned an appeal filed in a foreclosure action;
Nationstar Mortgage, LLC v. Mollo, supra, 180 Conn. App. 783; we do not
read Mollo as limiting its rationale to foreclosure matters only.
15
The plaintiff argues that any error with respect to the four original
special defenses is harmless because the court rejected them on the merits,
which the defendants do not address on appeal. This argument is unavailing,
however, because Mollo instructs that the court could not consider, sua
sponte, the merits of these special defenses without the plaintiff addressing
them in its summary judgment submissions. See Nationstar Mortgage, LLC
v. Mollo, supra, 180 Conn. App. 798.
16
The defendants do not challenge on appeal the court’s rejection of the
new special defenses as procedurally improper and, thus, we do not discuss
the propriety of that ruling.
Additionally, we note that the amended ninth and tenth special defenses,
individually or collectively, alleged that the defendants had given the plaintiff
implied permission to use the claimed easement area and that the plaintiff
had recognized the defendants’ superior claim to the claimed easement area.
Although these issues were not properly asserted as special defenses, such
that the plaintiff was not obligated to discuss them to invoke the court’s
authority as to its motion for summary judgment, these issues were
addressed in the parties’ respective summary judgment submissions and
analyzed elsewhere in the court’s decision. See part I B 2 a of this opinion.
17
Consistent with this court’s rescript in Mollo, we reverse the judgment
of the trial court granting the plaintiff’s motion for summary judgment and
remand the case for further proceedings according to law. It will remain
within the trial court’s discretion on remand as to whether to grant leave
for the filing of (1) an amended answer and special defenses to the extent
leave is requested and required under Practice Book § 10-60 (a) (3) and/or
(2) any additional motions for summary judgment under the circumstances
of the present case.
18
The defendants also claim that the court improperly concluded that the
portion of the Michael affidavit at issue could be disregarded pursuant
to the ‘‘sham affidavit’’ rule, which ‘‘refers to the trial court practice of
disregarding an offsetting affidavit in opposition to a motion for summary
judgment that contradicts the affiant’s prior deposition testimony’’ and which
has yet to be adopted expressly by our appellate courts. (Internal quotation
marks omitted.) Kenneson v. Eggert, 176 Conn. App. 296, 310, 170 A.3d 14(2017). Briefly, we note that, in replying to the defendants’ objection to its
motion for summary judgment, the plaintiff asserted that the Michael affida-
vit conflicted with Michael’s prior deposition testimony, which was elicited
on December 12, 2018, and, thus, constituted a sham affidavit. In its decision,
the court stated in a footnote that, ‘‘[w]ere the sham affidavit rule [to]
be adopted in Connecticut . . . the court would have no hesitation about
determining it to be applicable here’’; however, the court expressly declined
to adopt and to apply the rule in this case, instead ‘‘prefer[ring] to rely on
established rules of evidence’’ and determining that the relevant portion of
the Michael affidavit was not competent evidence pursuant to Practice Book
§ 17-46. Accordingly, we need not address the defendants’ claim regarding
the sham affidavit rule, and we leave for another day the question of whether
the rule is a viable doctrine in Connecticut.
19
The defendants also submitted the transcript of Michael’s deposition
taken on December 12, 2018, which contains testimony in line with his
averments regarding his responsibilities as to Safavieh Atlantic, LLC, and
his presence on the defendants’ properties.
20
Although the court used the phrases ‘‘claimed easement’’ and ‘‘claimed
easement area’’ in its analysis, we note that Michael’s averments concerned
only the plaintiff’s use of the alleyway rather than the claimed easement
area as a whole.
21
The court also stated that, in asserting its prescriptive easement claim,
the plaintiff was not contending that the claimed easement area was the
sole means providing access to its parking lot but, rather, that, as a result
of the configuration of the surrounding roads, the claimed easement area
provided the only reasonable route to the plaintiff’s parking lot for drivers
traveling southbound on Atlantic Street. As the court further explained,
‘‘[t]he failure to observe particular drivers using the alleyway . . . could
only be of any significance if it were known that the driver was headed
southbound on Atlantic Street—a northbound driver likely would never be
seen by the defendants’ principals or witnesses but the failure to observe
such individuals would be of no significance to the regularity of use.’’
22
Blauner averred in relevant part that, ‘‘[i]n or about the late 1990s, I
became acquainted with Michael . . . . I often saw [Michael] as I was
driving on over the paved area behind 234 Atlantic [Street] to or from the
[plaintiff’s] parking lot. . . . We frequently exchanged pleasantries . . . .
There is no question that he observed me driving over his properties (includ-
ing up and down the alleyway) to and from [the plaintiff’s] parking lot.’’
23
The defendants also assert that there are genuine issues of material fact
as to whether the plaintiff has a deeded easement right to a portion of
the paved area, which, the defendants posit, would defeat the plaintiff’s
prescriptive easement claim. The defendants raised this issue for the first
time by way of their amended second special defense asserted in their
October 15, 2019 pleading, which the court rejected as procedurally
improper. See part I A of this opinion. The defendants do not claim on
appeal that the court committed error in rejecting this issue on procedural
grounds. Thus, although the court discussed the merits of the amended
second special defense after it had deemed the defense to be procedurally
defective and determined that there was no evidence of a deeded easement,
we decline to address the defendants’ claim that there exist genuine issues
of material fact regarding a deeded easement because of their failure to
challenge the other, procedural basis for the court’s disposition of this issue.
24
The defendants limit their claim to the alleyway as opposed to the
claimed easement area as a whole.
25
In support of their argument, the defendants rely in part on evidence
reflecting an agreement reached by the parties that enabled the defendants
to use the plaintiff’s parking lot in exchange for the plaintiff using parking
spaces located to the rear of 200 Atlantic Street. Such evidence, however,
is irrelevant because it is undisputed that 200 Atlantic Street was purchased
in 2014, well after the plaintiff had acquired the prescriptive easement in
1997.
26
The defendants claim that Sachs v. Toquet, 121 Conn. 60, 183 A. 22(1936), supports their claim. We disagree. In Sachs, the parties were abutting
landowners who, by way of deed, had the right to use a common, ten foot
driveway without interference from one another. Id., 62–63. One of the
issues addressed by our Supreme Court on appeal was whether the trial
court’s subordinate findings supported its conclusion that the plaintiff had
acquired a prescriptive right ‘‘to permit vehicles to stand upon the driveway
for such reasonable length of time as would reasonably permit the loading
and unloading of goods at the rear door of his store.’’ Id., 65–66. Our Supreme
Court concluded that ‘‘[t]he trial court ha[d] not found that [the] plaintiff’s
use was exercised under a claim of right or that it was adverse. It ha[d]
found facts which clearly establish that it was not of that character. The
temporary parking of vehicles in the driveway while loading or unloading
might have continued for years without interfering with the use of the
driveway by the defendants, and such parking would be more consistent
with a permissive use as a matter of neighborly accommodation than an
invasion of the defendants’ rights under a claim of right.’’ Id., 66–67. More-
over, the trial court found that, except for one instance that occurred shortly
before the filing of the action, the plaintiff moved vehicles parked on the
driveway on request to allow other vehicles to pass, which, our Supreme
Court determined, ‘‘disclose[d] that [the] plaintiff’s use of the driveway for
parking was accompanied by a recognition of the right of the defendants
to pass and repass without interference by such parking, and it is inconsistent
with the claim that such parking was exercised under a claim of right.’’ Id.,
67. In short, we do not construe the circumstances of the present case to
be akin to the facts in Sachs demonstrating permissive use and recognition
of the defendants’ right as to the property.
27
The court also seemed to question whether the defendants’ evidentiary
submissions as to whether there was a consistent public use of the alleyway
and the paved area were conclusory rather than factual. Insofar as the court
deemed their evidentiary submissions to be conclusory, the defendants argue
that the court’s determination was improper. We do not construe the court’s
decision to reflect that the court, in fact, rejected the defendants’ evidentiary
submissions in this regard. Indeed, the court’s analysis focused on whether
there was a distinction between the public’s use and the plaintiff’s use.
Thus, we need not address this claim.
28
In their principal appellate brief, the defendants represent that they
never disputed that the plaintiff has a deeded easement right to use a portion
of the paved area to access its parking lot. As the court recognized in
its memorandum of decision, however, that representation is belied by
the record.
29
As we explained in footnote 23 of this opinion, we decline to examine
whether there is a genuine issue of material fact as to whether the plaintiff
has a deeded easement right to a portion of the paved area.
30
This claim is distinct from the defendants’ separate claim, concerning
the summary judgment rendered in favor of the plaintiff, that there are
genuine issues of material fact as to whether the plaintiff owns a deeded
easement right to a portion of the paved area. See footnote 23 of this opinion.
This distinction is further delineated by the amended first and second special
defenses asserted by the defendants. In the amended first special defense,
the defendants alleged that the plaintiff could not maintain a prescriptive
easement claim because, in its original complaint and in its amended com-
plaint, the plaintiff pleaded that it owned deeded easement rights. In the
amended second special defense, the defendants alleged that, in fact, the
plaintiff owned deeded easement rights.
31
The defendants reassert their argument that the plaintiff could seek to
reinstate its deeded easement claims in the event that its prescriptive ease-
ment claim is unsuccessful. Like the trial court, we reject this contention
as purely speculative.