STATE OF CONNECTICUT
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`FST-CV-23-6063464-S
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`OAMIC INGREDIENTS LLC
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`Plaintiff / Counterclaim Defendant
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF
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`STAMFORD/NORWALK
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`AT STAMFORD
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`v.
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`STEVEN Z. GU
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`Defendant / Counterclaim Plaintiff
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`PLAINTIFF OAMIC INGREDIENTS LLC’S MOTION TO STRIKE
`DEFENDANT STEVEN GU’S OBJECTION TO MOTION FOR SUMMARY
`JUDGMENT
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`Pursuant to Connecticut Practice Book § 4-6, Oamic Ingredients LLC (“Oamic
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`Ingredients”) moves to strike Steven Gu’s (“Defendant”) Objection to Oamic Ingredients’ Motion
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`for Summary Judgment (see Doc. Entry No. 139.00) because it consists of 44 pages, which exceeds
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`the Practice Book maximum of 35 pages. Defendant did not seek the Court’s permission prior to
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`filing his Objection, as required by the Practice Book. See Practice Book § 4-6(a). Accordingly,
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`the Court should strike Defendant’s Objection. See Correano v. Tiago’s Restaurant & Bar, LLC,
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`FBT-cv-14-6040441-S, 2016 WL 3026635, at *1 fn 1 (Conn. Super. Ct. May 6, 2016) (providing
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`that the court rejected the defendant’s memorandum for exceeding the page limit); Marnelli v.
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`Planning and Zoning Comm. Of City of Derby, LND-cv-19-115087-S, 2021 WL 761815, at *2 fn
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`4 (Conn. Super. Ct. Jan. 19, 2021) (providing that the court rejected a memorandum as it exceeded
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`the page limit); Saniz de Aja v. Gabriel Irazu, FST-FA-09017497-S, 2018 WL 1734989, at *1
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`(Conn. Super. Ct. March 2, 2018).
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`Dated: April 11, 2025
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`Respectfully Submitted,
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`FOX ROTHSCHILD LLP
`Attorneys for Plaintiff/Counterclaim Defendant
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`Oamic Ingredients LLC
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`By:
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`s/ Brittany Barbet
`212 Carnegie Center, Suite 400
`Princeton, NJ 08540
`Tel: 609-896-7651
`Email: bbarbet@foxrothschild.com
`Juris No: 440960
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`2
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`STATE OF CONNECTICUT
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`FST-CV-23-6063464-S
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`OAMIC INGREDIENTS LLC
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`Plaintiff / Counterclaim Defendant
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF
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`STAMFORD/NORWALK
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`AT STAMFORD
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`v.
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`STEVEN Z. GU
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`Defendant / Counterclaim Plaintiff
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`ATTORNEY CERTIFICATION IN SUPPORT OF PLAINTIFF OAMIC INGREDIENTS
`LLC’S MOTION TO STRIKE
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`BRITTANY M. BARBET, hereby declare under penalty of perjury:
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`1.
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`I am an associate at Fox Rothschild LLP, counsel for Plaintiff/Counterclaim
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`Defendant Oamic Ingredients LLC (“Oamic Ingredients”). As such, I am aware of the facts and
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`circumstances surrounding this matter and by review of the file. I submit this certification in
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`support of Oamic Ingredients’ Motion to Strike.
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`2.
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`True and accurate copies of the following unpublished decisions cited in Oamic
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`Ingredients’ Motion to Strike are attached hereto as Exhibit 1:
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`a. Correano v. Tiago’s Restaurant & Bar, LLC, FBT-cv-14-6040441-S, 2016 WL
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`3026635 (Conn. Super. Ct. May 6, 2016)
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`b. Marnelli v. Planning and Zoning Comm. Of City of Derby, LND-cv-19-115087-S,
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`2021 WL 761815 (Conn. Super. Ct. Jan. 19, 2021); and
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`c. Saniz de Aja v. Gabriel Irazu, FST-FA-09017497-S, 2018 WL 1734989 (Conn.
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`Super. Ct. March 2, 2018).
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`I hereby affirm that the following statements are true and accurate. I am aware that if any
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`of the foregoing statements are knowingly false, I am subject to punishment.
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`Dated: April 11, 2025
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`s/ Brittany Barbet
`BRITTANY M. BARBET
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`4
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`Correano v. Tiago's Restaurant & Bar, LLC, Not Reported in A.3d (2016)
`62 Conn. L. Rptr. 271
`
`2016 WL 3026635
`Only the Westlaw citation is currently available.
`
`UNPUBLISHED OPINION. CHECK
`COURT RULES BEFORE CITING.
`
`Superior Court of Connecticut,
`Judicial District of Fairfield.
`
`Alvin CORREANO
`v.
`TIAGO'S RESTAURANT AND BAR, LLC, et al.
`
`No. FBTCV146040441S.
`|
`May 6, 2016.
`
`Attorneys and Law Firms
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`Robert P. Cohen, Bridgeport, for Alvin Correano.
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`Milano & Wanat, Branford, Hassett & George PC, Simsbury,
`for Tiago's Restaurant and Bar, LLC, et al.
`
`Opinion
`
`ARNOLD, Judge.
`
`*1 The defendant, 211 Main Street, LLC, has filed a motion
`for summary judgment, as to Count Two of the plaintiff's
`amended complaint, arguing that there are no genuine issues
`of material fact that the defendant did not have possession
`and control of that area where the defect is located that
`allegedly caused the plaintiff's injury, and therefore, cannot
`be liable as a matter of law. The defendant has filed a
`memorandum of law, excerpts from deposition testimony,
`copies of a Commercial Lease Agreement, dated August 29,
`2007, an Assignment of Lease, which include a floor plan and
`a sworn affidavit from the property management company
`representative in support of its position. 1 The plaintiff filed
`an objection, a memorandum of law and a reply memorandum
`of law in opposition to the motion for summary judgment. The
`plaintiff has also submitted copies of deposition testimony
`and a sworn affidavit and report from a consulting engineer.
`Oral argument on the motion was heard before the court on
`February 8, 2016.
`
`The plaintiff has alleged that on or about January 22,
`2013, the defendant, 211 Main Street, LLC (“211 Main”),
`owned, possessed and/or controlled the premises at 211 State
`
`Street, Bridgeport, Connecticut. At that time and location, the
`plaintiff, an employee of Cablevision, was at the premises
`for a service call, when he alleges he was caused to slip
`and fall while descending a staircase leading from the
`kitchen of Tiago's Restaurant, located within a building at
`211 State Street (“Premises”), to the basement beneath the
`restaurant. The plaintiff alleges that the defendant(s) “caused
`or allowed and permitted the stairs to remain in a greasy
`and wet condition making the stairs dangerous to walk on.”
`The plaintiff further alleges that the two defendants, 211
`Main, the building owner, and Tiago's Restaurant and Bar,
`LLC (“Tiago's), the property lessee, were negligent in their
`maintenance of the staircase and caused the injuries and
`damages the plaintiff alleges were the result of his slip
`and fall. In Count One, the plaintiff alleges Tiago's was in
`possession of the restaurant and bar and was responsible for
`his injuries and damages. In Count Two, he alleges that 211
`Main was in possession and control of the same restaurant
`and bar and is responsible for his injuries and damages. Count
`Two is the subject of 211 Main's motion.
`
`The defendant, 211 Main, argues that the stairway that the
`plaintiff alleges was in a defective condition was within
`the leasehold demised to the tenant, Tiago's, possession
`and control, and the lease between 211 Main and Tiago's,
`placed the responsibility for maintenance of the stairway on
`the tenant, Tiago's. Therefore, 211 Main concludes that the
`evidence will not support a finding that it had such possession
`and control of the stairway as would be necessary to find
`liability against it. In support of its position, besides, the
`Lease, Assignment of the Lease, and the property managers'
`affidavit, the defendant 211 Main addresses the deposition
`testimony of Jose Tiago, the principal of the defendant Tiago's
`Restaurant and Bar. Mr. Tiago testified that under the terms
`of the lease, the responsibility the maintenance and cleaning
`of the interior staircase, at issue, was that of the restaurant
`staff, and as the tenant, Tiago's was obligated to, and did, clean
`and maintain the staircase on a daily basis. Tiago testified
`that he did not rely upon the building owner, the property
`management company or any other entity to maintain and
`clean the stairway.
`
`*2 The plaintiff, in opposing summary judgment, argues
`there are numerous issues of material fact to whether 211
`Main had control of the portion of the subject premises where
`the plaintiff slipped and fell. The lease between 211 Main
`and Tiago's provides that the landlord, 211 Main granted
`the tenant, Tiago's, the “non-exclusive right to the Common
`Areas in common with the Landlord.” Additionally, the lease
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` © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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`1
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`Correano v. Tiago's Restaurant & Bar, LLC, Not Reported in A.3d (2016)
`62 Conn. L. Rptr. 271
`
`provides that the “Landlord reserves the right from time to
`time to (i) close temporarily any of the Common Areas for
`maintenance purposes ... (ii) to make changes or revisions to
`the Common Areas ... (iii) relocate ... Wires, conduits and
`appurtenant meters and equipment included in the Premises,
`which are located in the Premises or located elsewhere
`outside the Premises.” The plaintiff argues that a stairway is
`a common area under the lease agreement and is the precise
`location on the premises where he sustained his injuries.
`Additionally, the Lease provides that there is a genuine issue
`of material fact as to whether 211 Main only granted Tiago's
`non-exclusive right to the stairway and 211 Main retained the
`right to close the stairway for maintenance purposes. Also,
`the plaintiff argues that pursuant to the Lease, 211 Main,
`as the landlord, had free access to the “Service Facilities,”
`which are defined as the mechanical, electrical, sanitary and
`other service systems within the building. Regarding the
`electrical systems, there is a question of fact as to whether
`Cablevision cable television equipment is part of the “Service
`Facilities” as the Cablevision equipment which services the
`entire building is located in that portion of the basement where
`the alleged defective stairway leads. The Lease also provides
`that 211 Main shall provide janitorial services for the common
`area only on a Monday through Friday basis at times chosen
`by 211 Main. The plaintiff argues that there are material issues
`of fact as to whether the subject staircase and basement were
`common areas. Lastly, the plaintiff argues that pursuant to the
`Assignment of the Lease Agreement the tenant, Tiago's, had a
`duty to keep and maintain the premises in a safe condition, but
`if Tiago's did not maintain the premises in a safe condition,
`then 211 Main retained the right to enter and undertake the
`required maintenance.
`
`Lastly, one of the plaintiff's allegation of negligence against
`the defendants is that the steps on the subject stairway were
`defective due to their non-uniform height and lack of tread
`in violation of applicable building codes. Therefore, Tiago's
`did not create that specific defect, and that defective condition
`existed at the time 211 Main leased the subject premises to
`Tiago's.
`
`Standard of Law
`
`“A Motion for Summary Judgment is designed to eliminate
`the delay and expense of litigating an issue where there is
`no real issue to be tried.” Wilson v. New Haven, 213 Conn.
`277, 279, 576 A.2d 829 (1989). “In deciding a motion for
`summary judgment, the trial court must view the evidence
`
`in the light most favorable to the nonmoving party.” Hertz
`Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d
`820 (1998). In ruling on a motion for summary judgment,
`the court's function is not to decide issues of material fact,
`but rather to determine whether any issues exist. Nolan v.
`Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The
`moving party has the burden of demonstrating the absence
`of any genuine issue of material fact. Hertz Corp. v. Federal
`Ins. Corp., supra, 245 Conn. at 381, 713 A.2d 820. “The
`opposing party must provide an evidentiary foundation to
`demonstrate the existence of a genuine issue of material fact.”
`Id. “A material fact is a fact which will make a difference
`in the result of a case.” Suarez v. Dickmont Plastics Corp.,
`229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc.
`v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556,
`791 A.2d 489 (2002). “The existence of the genuine issue
`of material fact must be demonstrated by counter affidavits
`and concrete evidence.” (Internal quotation marks omitted.)
`Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893,
`cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
`
`*3 The test used by the court is to determine if the moving
`party would be entitled to a directed verdict if the same
`set of facts were presented at trial. Connell v. Colwell, 214
`Conn. 242, 246–47, 571 A.2d 116 (1990). A directed verdict
`is properly rendered if a trier of fact cannot reasonably
`and legally find in any fashion other than that directed.
`Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106
`(1996).
`
`The issue of causation is a question of fact for the trier
`of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn.
`300, 307, 692 A.2d 709 (1997), and can only become one
`of law “when the mind of a fair and reasonable person
`could reach only one conclusion.” Id. Accordingly, “issues
`of negligence are ordinarily not susceptible of summary
`judgment adjudication but should be resolved by trial in the
`ordinary manner.” Fogarty v. Rashaw, 193 Conn. 442, 446,
`476 A.2d 582 (1984). “Summary judgment is ill-adapted
`to negligence cases, since the conclusion of negligence is
`normally one of fact.” Velardi v. Ryder Truck Rental, Inc., 178
`Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, “[t]he issue
`of whether [a] defendant owes a duty of care is an appropriate
`matter for summary judgment because the question is one
`of law.” Pion v. Southern New England Telephone Co., 44
`Conn.App. 657, 660, 691 A.2d 1107 (1997).
`
` © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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`2
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`

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`Correano v. Tiago's Restaurant & Bar, LLC, Not Reported in A.3d (2016)
`62 Conn. L. Rptr. 271
`
`Discussion
`
`The defendant, 211 Main, argues it that it did not possess or
`control the subject stairway at the time the plaintiff fell, and,
`therefore, it owed no duty to the plaintiff. “In a negligence
`action, the plaintiff must meet all of the essential elements
`of the tort in order to prevail. These elements are: duty;
`breach of that duty; causation; and actual injury.” LaFlamme
`v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “The
`existence of a duty of care is a prerequisite to a finding of
`negligence.” Gomes v. Commercial Union Ins. Co., 258 Conn.
`603, 614, 783 A.2d 462 (2001). “[L]iability in a premises
`liability case is based solely on control and possession, not
`title.” Lin v. National Railroad Passenger Corp., 277 Conn. 1,
`16 n. 10, 889 A.2d 798 (2006). “Possession involves not only
`the exercise of acts of ownership over the land but also the
`exclusion of such acts by others.” (Internal quotation marks
`omitted.) State v. Schaffel, 4 Conn.Cir.Ct. 234, 247, 229 A.2d
`552 (1966). “[T]he word ‘control’ has no legal or technical
`meaning distinct from that given in its popular acceptation ...
`and refers to the power or authority to manage, superintend,
`direct or oversee.” (Internal quotation marks omitted.) Doty v.
`Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
`“Generally, one does not owe a duty to entrants unless such
`person asserts control or possession over the property.” Silano
`v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d
`439 (2004).
`
`“Retention of control is essentially a matter of intention to be
`determined in the light of all the significant circumstances.”
`Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747
`(1968). However, whether control of the premises has been
`retained by a lessor is best “determined by the intent of the
`parties as expressed in the terms of the lease.” Martel v.
`Malone, 138 Conn. 385, 388–89, 85 A.2d 246 (1951). Thus,
`unless it is definitely expressed in the lease, the circumstances
`of the case determine whether the landlord has reserved
`control of the premises or whether they were under the
`exclusive dominion of the tenant, and it becomes a question
`of fact. In considering control of the premises, the court can
`look to acts of maintenance, upkeep, inspection, restricting or
`allowing entry to the property, and the use of the premises.
`Panaroni v. Johnson, 158 Conn. 92, 98–100, 256 A.2d 246
`(1969).
`
`*4 In examining the lease, the lease assignment provisions,
`and the deposition testimony, the court concludes that 211
`Main, the commercial landlord, was not responsible for
`
`patron's slip and fall injuries by way of the terms of the
`lease and assignment. 2 Nothing in lease or the assignment
`of the lease suggested that landlord maintained possession or
`control over the stairways leading to the basement area of
`the leased premises where the plaintiff fell. While landlord
`maintained right to enter the premises and to make repairs or
`to do maintenance, 211 Main was not obligated to examine the
`premises, nor was it obligated to make any repairs, additions,
`or alterations. See Mariani v. Ruzzier, Superior Court, judicial
`district of New Haven, No. CV116003495S (Oct. 31, 2013,
`Fischer, Jack, J.) [57 Conn. L. Rptr. 95]. Per the lease
`and assignment terms the tenant Tiago's was in possession
`and control of premises at the time patron fell, and it was
`therefore Tiago's duty to maintain the premises in a clean and
`safe condition and to make reasonable inspections thereof.
`Pursuant to the lease agreement between the 211 Main and
`the tenant, Tiago's, the tenant assumed responsibility for
`properly maintaining the area in which the plaintiff fell.
`“In construing a written lease, which constitutes a written
`contract, three elementary principles must be kept constantly
`in mind: (1) The intention of the parties is controlling and
`must be gathered from the language of the lease in the light
`of the circumstances surrounding the parties at the execution
`of the instrument; (2) the language must be given its ordinary
`meaning unless a technical or special meaning is clearly
`intended; [and] (3) the lease must be construed as a whole
`and in such a manner as to give effect to every provision,
`if reasonably possible.” (Internal quotation marks omitted.)
`Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269,
`275, 709 A.2d 558 (1998).
`
`Moreover, Tiago's agreed to indemnify and save 211 Main
`harmless from all claims and liability arising from the
`Tenant's use of the premises, including the common areas,
`including any such claims or liabilities arising from any
`breach or default in the performance of any obligation
`contained in the lease on the Tenant's part. Nothing in the lease
`agreement suggests that the 211 Main maintained possession
`or control over the area of the property where the plaintiff fell.
`
`However, although 211 Main surrendered possession and
`control of the premises to its tenant, Tiago's, 211 Main could
`still be liable for the plaintiff's injuries under an exception
`to the general rule that landlords have no duty to properly
`maintain any portions of the premises leased to and in the
`exclusive possession and control of the tenant. Fountain v.
`D'Addario Industries, Inc., Superior Court, judicial district
`of Hartford at Hartford, Docket No. CV–89–0261424–S
`(December 17, 1991, Spear, J.). “[A] visitor to business
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` © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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`3
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`Correano v. Tiago's Restaurant & Bar, LLC, Not Reported in A.3d (2016)
`62 Conn. L. Rptr. 271
`
`premises which have been leased by the owner may recover
`against him upon proof (1) that there existed at the time of
`the leasing conditions on the leased premises likely to cause
`injury to persons entering the premises; (2) that the landlord
`has knowledge, actual or imputable, of the existence of these
`conditions; (3) that the landlord had knowledge, actual or
`imputable, that persons were likely to be invited upon the
`premises as customers of the tenant; [and] (4) that the landlord
`had reason to expect that the tenant would not take steps to
`remedy or guard against injury from the conditions.” Fiorelli
`v. Gorsky, 120 Conn.App. 298, 310, 991 A.2d 1105, cert.
`denied, 298 Conn. 933, 10 A.3d 517 (2010). Thus, under the
`exception to the general rule, “[i]n order for the defendant
`Landlord to be held liable for injuries sustained by virtue of
`[a dangerous] condition, that condition must have existed at
`the time the premises were put into the possession and control
`of the Tenant ... or, alternatively, the condition must have
`been created by the defendant at some time subsequent to
`the commencement of the tenancy.” Fountain v. D'Addario
`Industries, Inc., supra.
`
`*5 Our Supreme Court “repudiated” the general rule of
`non-responsibility of a landlord for the condition of demised
`premises as to injuries suffered by members of the public
`who are invited by the tenant to use the premises. Webel
`v. Yale University, 125 Conn. 515, 519, 7 A.2d 215 (1939).
`Under Webel a landlord may be liable to a third party if
`“the landowner leases premises on which he knows or should
`know that there are conditions likely to cause injury to persons
`entering on them, that the purpose for which the premises
`are leased involves the fact that people will be invited upon
`the premises as patrons of the tenant, and that the landowner
`knows or should know that the tenant cannot reasonably be
`expected to remedy or guard against injury from the defect.”
`Id., at 523, 7 A.2d 215.
`
`In Webel v. Yale University, supra, the plaintiff fell on
`premises leased by Yale University for a beauty shop. The
`floor of a room from which the plaintiff was leaving was
`seven inches higher than that of the room she was entering. Id.
`Our Supreme Court adopted and applied a doctrine relating
`to the situation in which a landowner leases premises for a
`purpose that will result in people entering them as invitees
`of the tenant. Id. In Webel, “[t]he court determined that if
`there are conditions on the premises that are likely to cause
`injury to such persons and the landowner knows or should
`know that the tenant cannot reasonably be expected to remedy
`these conditions or guard against danger from them, the
`landlord may be liable for injuries suffered by reason of those
`
`conditions.” Fiorelli v. Gorsky, supra, 120 Conn.App. at 310–
`11, 991 A.2d 1105.
`
`In support of his position that the subject premises were in
`a defective condition and such defect existed at the time
`211 Main leased the premises to the defendant Tiago's, the
`plaintiff has submitted a sworn affidavit and a report from
`Douglas A. Fisher, P.E ., a consulting engineer. 3 In his report,
`Fisher states in detail his conclusions that the stairs lacked
`sufficient tread depth and the stairs were not sufficiently slip-
`resistant. He also noted a lack of dimensional uniformity
`in the riser heights and tread depths. It is his opinion that
`the subject staircase did not conform to standards set forth
`in minimum standards and fire and building codes for stair
`safety. The plaintiff argues that this presents a question of
`fact as to whether the stairway as it existed at the time of
`Fisher's inspection was in the same defective condition when
`211 Main entered into a landlord and tenant relationship
`with Tiago's, by virtue of the lease assignment agreement.
`It additionally creates issues of fact as to whether 211 Main
`had knowledge, actual or imputable of the existence of the
`alleged defective stairway condition and that the landlord had
`reason to expect the tenant would not take steps to remedy or
`guard injuries due to the defective condition of the stairway.
`Brenner v. Central Realty Co., 130 Conn. 666, 667, 37 A.2d
`230 (1944), citing Webel v. Yale University, supra, 125 Conn.
`at 515, 7 A.2d 215. “Under Connecticut law, the existence
`of both actual and constructive notice is a question of fact.”
`Venderall v. Astriab Family Ltd. Partnership, 133 Conn.App.
`630, 659, 36 A.3d 707, (2012), aff'd, 311 Conn. 301, 87 A.3d
`546 (2014).
`
`*6 There are genuine issues of material fact as to: (1) any
`defective condition of the stairs; (2) the existence of any
`defect at the time 211 Main leased the premises to Tiago's;
`(3) 211 Main's actual and/or constructive knowledge of the
`alleged defect and whether invitees upon the premises would
`likely be invited to use the stairs to access the basement area;
`and (4) whether 211 Main had reason to expect that Tiago's
`would not take steps to remedy or guard against injuries,
`which might be incurred by using the alleged defective
`stairway. For the reasons stated herein, the court finds there
`are genuine issues of material fact and accordingly, the motion
`for summary judgment is denied.
`
`All Citations
`
`Not Reported in A.3d, 2016 WL 3026635, 62 Conn. L. Rptr.
`271
`
` © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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`Correano v. Tiago's Restaurant & Bar, LLC, Not Reported in A.3d (2016)
`62 Conn. L. Rptr. 271
`
`Footnotes
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`1
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`2
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`3
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`The defendant also filed a reply memorandum of law in response to the plaintiff's objection. The court has
`rejected the reply memorandum totaling 27 pages pursuant to Practice Book § 4–6 and § 11–109(b), limiting
`reply briefs to 10 pages unless the court grants permission to exceed that amount.
`
`In making this finding the court has examined the terms of the original Commercial Lease Agreement dated
`August 29, 2007 and an Assignment, Assumption and Amendment to the Commercial Lease Agreement that
`was subsequently executed on November 30, 2009. More particularly, see, Lease Articles 2.03, 5.03, 6.04,
`7.01, 7.04 and Article VIII. See also, Assignment of Lease, Article 5.09.
`
`Fisher's report is dated May 22, 2014 and is based on his observations and inspection of the alleged defective
`staircase on April 30, 2014.
`
`End of Document
`
`© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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` © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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`Marinelli v. Planning and Zoning Commission of City of Derby, Not Reported in Atl....
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`2021 WL 761815
`Only the Westlaw citation is currently available.
`
`UNPUBLISHED OPINION. CHECK
`COURT RULES BEFORE CITING.
`
`Superior Court of Connecticut,
`Judicial District of Hartford, Land
`Use Litigation Docket at Hartford.
`
`Dorothy MARINELLI et al.
`v.
`PLANNING AND ZONING COMMISSION
`OF the CITY OF DERBY et al.
`
`LNDCV196115087S
`|
`January 19, 2021
`
`Berger, J.T.R.
`
`I
`
`*1 The plaintiffs, Dorothy Marinelli, individually and as
`trustee of the Marinelli Family Trust, of 116 Chatfield Street
`in Derby, and Sharlene McEvoy of 200 Emmett Avenue
`in Derby, appeal a decision by the defendant, the planning
`and zoning commission of the city of Derby (commission),
`granting a site plan application of the codefendant, the South
`Central Connecticut Regional Water Authority (RWA), to
`construct a one million gallon water tank with a below grade
`valve vault and a parking lot on the subject property. The
`subject property is at 73-75 Chatfield Street in Derby in
`a public (P) zone and consists of two lots—one lot to be
`leased from the city of Derby and one lot owned by the
`Saint Peter and Paul Ukrainian Catholic Church. (Return of
`Record [ROR], Item 29.) After several continuances, 1 the
`commission held a public hearing on June 18, 2019; (ROR,
`Item 25); after which the commission voted unanimously to
`grant the application for the site plan. (ROR, Item 36d(iii), pp.
`21-22.) Notice was published in the New Haven Register on
`June 29, 2019. (ROR, Item 21.)
`
`On July 8, 2019, the plaintiffs commenced this appeal alleging
`that the commission's decision was illegal, arbitrary and
`an abuse of discretion. They challenge the commission's
`administrative process including its interpretation of the
`zoning regulations. They also assert that the granting of the
`
`special permit violates General Statutes § 22a-19 2 of the
`Connecticut Environmental Protection Act (CEPA) in that the
`construction of the tank and the parking lot will—or are likely
`to—result in unreasonable destruction of the public trust in
`the air, water or other natural resources of the state.
`
`*2 On September 19, 2019, the plaintiffs filed an amended
`complaint adding an allegation that the commission violated
`General Statutes § 7-163e 3 by failing to post appropriate
`notice regarding the sale or lease of the portion of the subject
`property that is owned by the city. Pursuant to this court's
`directive, the issue was briefed by the parties and heard by the
`court, Cohn, J.T.R., on January 2, 2020. On January 9, 2020,
`the court held that notice was not posted, but that the statute
`was inapplicable as it applies only to a legislative body which
`is not the zoning commission.
`
`The return of record was filed on December 20, 2020. On
`January 2, 2020, the commission filed a corrected version of
`return of record item seventeen and filed supplemental return
`of record items on January 16, 2020, March 5, 2020, and
`March 10, 2020. The plaintiffs filed their brief on March 23,
`2020, the defendants filed a joint brief on April 23, 2020, and
`the plaintiffs filed a brief in reply on August 14, 2020. 4 Also,
`on August 14, 2020, the parties filed a stipulation of facts.
`The court heard argument on September 2, 2020. During
`a remote status conference on October 2, 2020, the court
`requested that the relevant portions of the plan of conservation
`and development (POCD) be filed. The commission filed a
`supplemental return of record containing this information on
`October 6, 2020.
`
`II
`
`Under General Statutes § 8-8(b), “any person aggrieved by
`any decision of a board, including a decision to approve or
`deny a site plan pursuant to subsection (g) of section 8-3 or
`a special permit or special exception pursuant to 8-3c, may
`take an appeal to the superior court for the judicial district
`in which the municipality is located ...” General Statutes §
`8-8(a)(1) defines “aggrieved person,” in relevant part, as “any
`person owning land in this state that abuts or is within a
`radius of one hundred feet of any portion of the land involved
`in the decision of the board.” In the parties' August 14,
`2020 stipulation, they agree that Marinelli, in her individual
`capacity and as trustee of the Marinelli Family Trust, owns
`the property at 116 Chatfield Street which abuts or is situated
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`Marinelli v. Planning and Zoning Commission of City of Derby, Not Reported in Atl....
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`within 100 feet of the subject property. Accordingly, this court
`finds Marinelli is aggrieved. General Statutes § 8-8(a) and (b).
`
`It was further stipulated that both Marinelli, in her individual
`capacity and as trustee, and McEvoy submitted verified §
`22a-19 petitions to the commission. Thus, the plaintiffs have
`standing to raise environmental issues. See Mystic Marinelife
`Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d
`726 (1978) (“[B]ecause [the intervening plaintiff] became
`a party under § 22a-19(a) in filing a verified pleading,
`which set the parameters of the issues it could raise on
`this appeal, there is no question here that [the intervening
`plaintiff] can appeal. That appeal, however, is limited to
`raising environmental issues only, as the Superior Court
`properly held. Therefore, having become a proper party
`in the administrative proceeding, [the intervening plaintiff]
`had statutory standing to appeal for the limited purpose of
`raising environmental issues.”); see also Finley v. Inland
`Wetlands Commission, 289 Conn. 12, 34, 959 A.2d 569
`(2008) (“[a]n intervenor pursuant to § 22a-19 has standing to
`bring an appeal from an agency's decision 'only to protect the
`natural resources of the state from pollution or destruction”);
`Branhaven Plaza, LLC v. Inland Wetlands Commission, 251
`Conn. 269, 276 n.9, 740 A.2d 847 (1999) (“[b]ecause the
`plaintiffs filed a notice of intervention at the commission
`hearings in accordance with § 22a-19(a), they had standing
`to appeal the environmental issues associated with that
`commission's decision”).
`
`III
`
`*3 “A site plan is a plan filed with a zoning commission
`or other municipal agency or official to determine the
`conformity of a proposed building, use or structure with
`specific provisions of the zoning regulations. It is a physical
`plan showing the layout and design of a proposed use,
`including structures, parking areas and open space and their
`relation to adjacent uses and roads, and containing the
`information required by the zoning regulations for that use ...
`A zoning commission's authority in ruling on a site plan is
`limited ... The agency has no independent discretion beyond
`determining whether the plan complies with the site plan
`regulations and applicable zoning regulations incorporated
`by reference ... A site plan and special permit application
`aid zoning agencies in determining the conformity of a
`proposed building or use with specific provisions of the
`regulations ... General Statutes § 8-3(g) sets out a zoning
`commission's authority to act on a site plan application:
`
`‘A site plan may be modified or denied only if it fails to
`comply with requirements already set forth in the zoning or
`inland wetlands regulations ...’ ” (Citations omitted; internal
`quotation marks omitted.) Fedus v. Zoning & Planning
`Commission, 112 Conn.App. 844