DocketNumber: No. 18627
Citation Numbers: 2003 Conn. Super. Ct. 2775
Judges: PURTILL, JUDGE TRIAL REFEREE.
Filed Date: 2/26/2003
Status: Non-Precedential
Modified Date: 4/17/2021
Defendants have moved to dismiss the complaint claiming that the court lacks subject matter jurisdiction because of an arbitration agreement between the parties and that the notice to quit is defective.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot, as a matter of law in fact, state a cause of action that should be heard by the court."Gurliacci v. Mayer,
"Where a contract contains a stipulation that the decision of arbitrators on certain questions shall be a condition precedent to the right of action on the contract itself, such stipulation shall be enforced and, until arbitration has been pursued or some sufficient reason given for not pursuing it, no action can be brought on the contract." Multi-Service Contractors, Inc. v. Vernon,
"Whether an agreement makes arbitration a condition precedent to an action in court depends on the language of the agreement . . . In the absence of such express language, a provision for arbitration may be construed to be a condition precedent to suit by implication, but that implication must be so plain that a contrary intention cannot be disposed nor any other inference made. It must be a necessary implication."Kantrowitz v. Perlman,
Section 15 of the lease does not expressly make arbitration a condition precedent to the bringing of the present action. In view of the language of paragraph 3 of the lease, expressly authorizing summary process for nonpayment of rent, arbitration as a precedent to the bringing of this action cannot be implied.
The motion to dismiss cannot be granted based upon a claim that arbitration is a condition precedent to the bringing of this action.
The notice to quit appended to the complaint states as the reason for termination of the lease, "non-payment of rent as provided at § 7(a) and (b) of the lease; . . ."
Section 7 of the lease deals with fire and casualty insurance. Subsection (b) of this section contains the following language. "The cost of fire insurance required to be reimbursed by the lessee to the lessor in this section shall be deemed to be additional rental hereunder . . ." The plain language of this subsection indicates that the lease intended that the cost of fire insurance payable to the lessor be considered as rent. The notice to quit unequivocally notifies defendants to quit the premises for nonpayment of rent as provided by § 7 of the lease. Since § 7(b) considers the cost of fire insurance to be rent, it must be concluded that the notice to quit is valid in this case.
Claims have been made that the lease has been amended to alter the situation with respect to fire insurance costs. This presents CT Page 2777 a question of fact which must be determined at trial.
The court has jurisdiction in this matter and the motion to dismiss must be denied.
Joseph J. Purtill Judge Trial Referee
CT Page 2778