Sample Memorandum in Support of Objection to Defendant's Motion to Stay Pending Arbitration
The plaintiff commenced the instant summary process action by service of the writ, summons and complaint on September 14, 2010 seeking possession of a the commercial premises occupied by the defendant and located at ***, Connecticut. The occupancy of the premises by the defendant is governed by a lease dated and executed by, or on behalf of, the parties February 11, 2009 for an initial term ending March 31, 2014.
Although the Notice to Quit alleges three grounds, the complaint in this action seeks possession of the premises solely based upon the ground of nonpayment of rent.
The defendant has moved for a stay of the action pending arbitration pursuant to paragraph 26 of the lease. However, paragraph 23 of the lease allows the plaintiff to proceed with a summary process action to obtain possession of the premises without the need for arbitration. As a result, the plaintiff has filed an objection to the defendant's motion for this reason and others.
II. LAW AND ARGUMENT:
"‘To establish its right to a stay of proceeding under [Section 52-409] a movant must establish the following facts: (1) that both it and the plaintiff in the action sought to be stayed are parties to a written arbitration agreement; (2) that at least one issue involved in the action to be stayed is referable to arbitration under the agreement; and (3) that the movant is ready and willing to proceed with the arbitration.' (Internal quotation marks omitted.) Christiani v. Benefitpoint, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 04 4025119 (March 7, 2008, Berger, J.)." Kutcher v. Connecticut Vascular & Thoracic Surgical Associates, PC, et al., Superior Court, Judicial District of Fairfield, Docket No. FBT-CV09-5026130-S (January 07, 2010. Gilardi, J.T.R.).
A. There are no issues involved in the instant action referable to arbitration under the agreement.
As stated above, a party seeking a stay under section 52-409 of the Connecticut General Statutes must first show "that at least one issue involved in the action to be stayed is referable to arbitration under the agreement." Id. A review of the operative agreement in this summary process action shows that no issues are referable to arbitration.
Indeed, the lease between the parties specifically states that the plaintiff may: "Bring a court action to get the space back and reasonable attorney fees and costs" and that the plaintiff "LANDLORD may use any other remedies available to LANDLORD under the law to get the space back or for rents owed." Paragraphs 23(b) and (e) of Plaintiff's Exhibit A attached to its complaint (emphasis added).
The broad language of paragraph 26 of the lease between the parties has been cited by the defendant in support of the proposition that the instant summary process action is subject to arbitration. However, this paragraph follows the express right of the landlord in paragraph 23 of the lease which states that the landlord may bring a court action for possession of the premises. Therefore, paragraph 26 of the lease should be construed to read "Any other dispute arising under this Lease shall be settled by Binding Arbitration."
By definition, a summary process case is an action to obtain possession of a premises or to "get back" a leased space. Conn. Gen Stat. §47a-23a. The lease between the parties clearly states that the plaintiff may use ANY other remedies at law to obtain possession of the premises which is the subject of said lease. Therefore, an action to obtain possession of the premises is not referable to arbitration under the agreement between the parties and the defendant's motion must be denied. See Kutcher cited above.
B. There is no dispute with regard to the issue of whether rent has been paid.
Even if the court reads the language of paragraph 26 to include an action for possession, it must first determine whether or not any dispute actually exists because only "disputes arising under [the] Lease" are referable to arbitration. To date, the defendant has offered no affidavit, evidence, nor even a bald assertion in its motion that it disputes the issue of nonpayment. If the defendant cannot claim it has paid the rent due under the lease between the parties, then there is no dispute requiring arbitration. The defendant should at least be required to answer the allegations of the complaint, file an affidavit, or have a witness testify under oath to demonstrate to the court that there is a dispute arising under the lease. If the defendant cannot demonstrate such a dispute, then the motion for stay should be denied.
C. The defendant has failed to demonstrate that it is ready and willing to proceed with the arbitration.
The final requirement under Kutcher is that the movant is ready and willing to proceed with the arbitration. Again, the defendant has not even made an assertion in its motion that it is willing and able to proceed with arbitration, or that it has taken any steps toward such arbitration.
Section 52-409 of the Connecticut General Statutes provides, in pertinent part, that "shall, on motion of any party to the arbitration agreement, stay the action or proceeding...provided the person making application for the stay shall be ready and willing to proceed with the arbitration." (emphasis added).
"If the circumstances indicate that the stay has been requested largely for purposes of delay, a stay may be denied . . . and if the scope of the submission is specific and narrowly drawn, matters outside the specific area of agreement will not be referred to arbitration." (Citations omitted.) Banford v. Maroon, Superior Court, Judicial District of Hartford-New Britain Housing Session, Docket No. CVN 9701 1597 (May 20, 1997, Beach, J.) (23 Conn. L. Rptr. 148).
In the instant matter, the defendant has not taken any steps to proceed with arbitration such as proposing an arbitrator, or filing a Demand for Arbitration with any recognized arbitration association.
Therefore, the court should deny the defendant's motion for stay because the defendant has failed to demonstrate that it is ready and willing to proceed with arbitration, if the stay is granted.
WHEREFORE, the plaintiff prays that the court sustain the plaintiff's objection and deny the defendant's Motion to Stay Pending Arbitration.