*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
CHAD E. COHEN ET AL. v.

POSTAL HOLDINGS, LLC

(AC 42912)

DiPentima, C. J., and Moll and Devlin, Js.

Syllabus

The plaintiffs sought to recover damages from the defendant for private

nuisance and negligence as a result of harm they allegedly suffered

when the parties had been abutting property owners and the real property owned by the defendant allegedly had been in a dangerous condition

that the defendant had failed to prevent or to abate. The defendant’s

predecessor lessors executed a ground lease of the property with U

Co., a federal agency, and, subsequently, the defendant became the sole

owner and sole lessor of the subject property. The trial court granted

the defendant’s motion for summary judgment. On the plaintiffs’ appeal

to this court, held:

1. The trial court properly granted the defendant’s motion for summary

judgment as to the claim of negligence and determined that the defendant

did not maintain control of the property and, thus, did not owe a duty

of care to the plaintiffs: the ground lease, in clear and unambiguous

terms, demised full control of the property to U Co. and divested any

control of the property from the defendant; moreover, this court declined

to consider whether the defendant exercised de facto control over the

property, as the ground lease clearly and unambiguously provided that

U Co. maintained control of the property.

2. The trial court properly granted the defendant’s motion for summary

judgment as to the plaintiffs’ private nuisance claim; the ground lease

demised full control of the property to U Co. and provided that U Co.’s

responsibility for maintenance shall be fulfilled at such time and in such

manner as U Co. considers necessary and provided the defendant no

right to enter the property to perform maintenance or repairs or to

demand that U Co. maintain the property and, thus, the defendant’s

inaction with regard to the condition of the property could not be

characterized as causing a negligent or intentional interference with the

plaintiffs’ use and enjoyment of their property.

Submitted on briefs April 22—officially released July 28, 2020

Procedural History

Action to recover damages for private nuisance, and

for other relief, brought to the Superior Court in the

judicial district of Danbury, where the plaintiffs filed an

amended complaint; thereafter, the court, Krumeich,

J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from which the

plaintiffs appealed to this court. Affirmed.

Beverley Rogers, submitted a brief for the appellants (plaintiffs).

Matthew G. Conway and Raymond M. Gauvreau

submitted a brief for the appellee (defendant).
Opinion

MOLL, J. The plaintiffs, Chad E. Cohen and Kirsten

Cohen, appeal from the summary judgment rendered by

the trial court in favor of the defendant, Postal Holdings,

LLC, on their operative two count complaint sounding

in negligence and private nuisance. On appeal, the plaintiffs claim that the trial court improperly concluded

that (1) the defendant was not liable for negligence on

the ground that there was no genuine issue of material

fact that the defendant did not exercise control over

the leased premises at issue and, therefore, did not owe

a duty of care to the plaintiffs, who, at all relevant times,

owned abutting property, and (2) the defendant was

not liable for private nuisance on the ground that there

was no genuine issue of material fact that the defendant

did not interfere with the plaintiffs’ use and enjoyment

of their abutting property. We disagree, and, accordingly, we affirm the summary judgment of the trial

court.1

The following facts and procedural history are relevant to our resolution of this appeal. In 1982, Connecticut Equities Corp. and Edward H. Benenson (original

lessors) executed a ground lease with the United States

Postal Service (USPS) pursuant to which the original

lessors demised, leased, and rented to USPS real property now known as 26 and 28 Catoonah Street in Ridgefield. Paragraph 8 of the ground lease provided:

‘‘[USPS], during the term of this lease and any options

hereunder, hereby agrees to save harmless and indemnify the Lessor from all claims, loss, damage, actions,

causes of action, expense and liability resulting from

the use of the demised property by [USPS] whenever

such claims, loss, damage, actions, causes of action,

expense and liability arise from the negligent or wrongful act or omission by an employee while acting within

the scope of his employment, under circumstances

where [USPS], if a private person, would be liable in

accordance with the law of the place where the negligent or wrongful act or omission occurred.’’ Paragraph

9 of the ground lease provided in relevant part: ‘‘Except

as otherwise provided herein, [USPS], at its own cost

and expense, shall construct and maintain all buildings,

structures and improvements on the demised premises.

. . . [USPS’] responsibility for maintenance shall be

fulfilled at such time and in such manner as [USPS]

considers necessary.’’

In 1983, the original lessors and USPS executed an

amendment to the ground lease, which provided, inter

alia, that USPS was prohibited from constructing any

fences or barriers on the leased premises with the

exception of a proposed chain link fence described in

the amendment. The amendment further provided that

all terms and conditions of the ground lease not modified thereby, which included paragraphs 8 and 9,

remained in full force and effect.
Prior to December 13, 2006, Lisa Quattrocchi, Amy

Aronson, and the estate of Edward H. Benenson (successor lessors) acquired title to 26 and 28 Catoonah

Street as well as the original lessors’ interest in the

ground lease. On December 13, 2006, the successor

lessors and USPS executed a second amendment to the

ground lease, which, inter alia, created a new schedule

of rents. The amendment further provided that all terms,

conditions, and covenants of the ground lease not modified thereby, which included paragraphs 8 and 9,

remained in full force and effect.

In 2010, by way of a quitclaim deed, the defendant

became the sole owner of 26 and 28 Catoonah Street.

In 2011, by way of an assignment and assumption of

the ground lease, the defendant became the sole lessor

of 26 and 28 Catoonah Street.

On October 8, 2013, the plaintiffs commenced the

present action against the defendant, raising one count

sounding in private nuisance. In their original complaint, the plaintiffs alleged, inter alia, that 28 Catoonah

Street (property)2 had consisted of an ‘‘unused lot with

an abandoned structure in an obvious state of severe

disrepair and neglect’’ since approximately 2006, and

that, as a result of the defendant’s failure to prevent or

to abate the dangerous condition of the property, they

were unable to sell their abutting property.

On March 11, 2014, the defendant filed a motion to

implead USPS, which the trial court, Ozalis, J., granted

on April 16, 2014. On May 16, 2014, the defendant served

a third-party complaint on USPS, alleging common-law

and contractual indemnification. On June 4, 2014, pursuant to 28 U.S.C. § 1442 (a) (1) (2012), USPS removed

the matter to the United States District Court for the

District of Connecticut. See Cohen v. Postal Holdings,

LLC, United States District Court, Docket No.

3:14CV800 (AWT) (D. Conn. June 4, 2014).

After the matter had been removed to federal court,

the plaintiffs filed an amended two count complaint

sounding in private nuisance and negligence. The defendant answered the amended complaint and asserted

several special defenses.

On June 20, 2014, USPS filed a motion to dismiss the

defendant’s third-party complaint for lack of subject

matter jurisdiction. On January 15, 2015, the District

Court granted USPS’ motion to dismiss, thereby terminating USPS as a party to the matter.

On October 15, 2015, the defendant filed a motion for

summary judgment as to both counts of the plaintiffs’

amended complaint. The plaintiffs objected to the

motion only insofar as the defendant was moving for

summary judgment on their private nuisance claim. On

June 1, 2016, the District Court issued its ruling granting

the defendant’s motion for summary judgment in toto.

Thereafter, the plaintiffs appealed from the summary
judgment to the United States Court of Appeals for the

Second Circuit.

On October 11, 2017, the Second Circuit vacated the

District Court’s summary judgment on the ground that

the District Court, having properly dismissed the defendant’s third-party complaint against USPS for lack of

subject matter jurisdiction, lacked supplemental jurisdiction over the plaintiffs’ state law claims. See Cohen

v. Postal Holdings, LLC, 873 F.3d 394, 404 (2d Cir.

2017). The Second Circuit remanded the matter to the

District Court to remand the plaintiffs’ state law claims

to the Superior Court for further proceedings consistent

with its opinion. Id. On August 2, 2018, the District

Court remanded the matter to the Superior Court.

On November 9, 2018, the plaintiffs filed a revised

two count complaint, which became their operative

complaint, sounding in private nuisance and negligence.

In support of both counts, the plaintiffs alleged, inter

alia, that, at all relevant times, the property was in a

dangerous condition3

that the defendant had failed to

prevent or to abate, thereby causing them harm while

they had been abutting property owners.4 On November

13, 2018, the defendant filed an answer denying the

material allegations of the operative complaint and

asserting several special defenses.

On December 14, 2018, the defendant filed a motion

for summary judgment, accompanied by a supporting

memorandum of law and exhibits, as to both counts of

the plaintiffs’ operative complaint. On January 28, 2019,

the plaintiffs filed a memorandum of law in opposition

to the motion for summary judgment with appended

exhibits. On February 19, 2019, the defendant filed a

reply brief with appended exhibits.

On March 28, 2019, after having heard argument on

March 25, 2019, the trial court, Krumeich, J., issued

a memorandum of decision granting the defendant’s

motion for summary judgment. On April 17, 2019, the

plaintiffs filed a motion to reargue, which the court

denied on April 22, 2019. This appeal followed. Additional facts and procedural history will be set forth

as necessary.

Before turning to the plaintiffs’ claims on appeal, we

set forth the relevant standard of review. ‘‘Practice

Book [§ 17-49] provides that summary judgment shall

be rendered forthwith if the pleadings, affidavits and

any other proof submitted show that there is no genuine

issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the

nonmoving party. . . . The party seeking summary

judgment has the burden of showing the absence of

any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him [or her]
to a judgment as a matter of law . . . and the party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact. . . . A material fact . . . [is] a

fact which will make a difference in the result of the

case. . . . Finally, the scope of our review of the trial

court’s decision to grant [a] motion for summary judgment is plenary.’’ (Internal quotation marks omitted.)

Rutter v. Janis, 334 Conn. 722, 729, 224 A.3d 525 (2020).

I

The plaintiffs first claim that the trial court improperly granted the defendant’s motion for summary judgment as to their negligence claim on the ground that

there was no genuine issue of material fact that the

defendant did not exert control over the property and,

therefore, did not owe a duty of care to the plaintiffs.

We disagree.

‘‘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. . . . The general rule regarding

premises liability in the landlord-tenant context is that

landlords owe a duty of reasonable care as to those

parts of the property over which they have retained

control. . . . [L]andlords [however] generally [do] not

have a duty to keep in repair any portion of the premises

leased to and in the exclusive possession and control

of the tenant.’’ (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn. App. 298, 308, 991 A.2d 1105,

cert. denied, 298 Conn. 933, 10 A.3d 517 (2010). ‘‘[L]iability for injuries caused by defective premises . . . does

not depend on who holds legal title, but rather on who

has possession and control of the property. . . . Thus,

the dispositive issue in deciding whether a duty exists

is whether the [defendant] has any right to possession

and control of the property.’’ (Internal quotation marks

omitted.) Millette v. Connecticut Post Ltd. Partnership,

143 Conn. App. 62, 70, 70 A.3d 126 (2013).

‘‘Retention of control is essentially a matter of intention to be determined in the light of all the significant

circumstances. . . . The 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. . . . Unless

it is definitely expressed in the lease, the circumstances

of the particular case determine whether the lessor has

reserved control of the premises or whether they were

under the exclusive dominion of the tenant, and it

becomes a question of fact and is a matter of intention

in the light of all the significant and attendant facts

which bear on the issue. . . . Although questions of

fact ordinarily are not decided on summary judgment,

if the issue of control is expressed definitively in the

lease, it becomes, in effect, a question of law.’’ (Citation

omitted; emphasis omitted; internal quotation marks
omitted.) Fiorelli v. Gorsky, supra, 120 Conn. App.

308–309.

The following additional facts and procedural history

are relevant to our disposition of the plaintiffs’ claim.

In their operative complaint, the plaintiffs alleged that

the defendant was liable for negligence because it failed

to prevent or to abate the dangerous condition of the

property. More specifically, the plaintiffs alleged that

the defendant failed either to enforce its purported right

under the ground lease to require USPS to maintain the

property or to take other action to prevent or to abate

the dangerous condition thereof.

In its memorandum of law in support of its motion

for summary judgment, the defendant claimed that

there was no genuine issue of material fact that it did

not have possession or control of the property. The

defendant asserted that paragraph 9 of the ground lease

contained clear and unambiguous language demising

complete possession and control of the property, along

with the responsibility for the maintenance thereof, to

USPS. Without possession or control of the property,

the defendant posited, it did not owe a duty of care to

the plaintiffs, and, therefore, it was not liable for negligence.

In their memorandum of law in opposition to the

defendant’s motion for summary judgment, the plaintiffs argued that there existed a genuine issue of material fact as to whether the defendant exercised control

over the property. First, the plaintiffs contended that

the terms of the ground lease could be construed to

bestow upon the defendant a right, obligation, and duty

to prevent or to abate the dangerous condition of the

property or to require USPS to maintain the property,

and, thus, there existed an ambiguity as to whether

the defendant exerted control over the property. The

plaintiffs relied on the fact that the portion of paragraph

9 of the ground lease providing that USPS, ‘‘at its own

cost and expense, shall construct and maintain all buildings, structures and improvements on the demised

premises’’ was conditioned by the qualifying clause

‘‘[e]xcept as otherwise provided herein.’’ The plaintiffs

argued that the indemnification language set forth in

paragraph 8 of the ground lease signified that the parties

contemplated situations in which USPS might engage

in negligent conduct in relation to the property that

would require the defendant to take action to cure

USPS’ negligence, provided that USPS indemnify the

defendant, thus constituting an exception to USPS’ right

and obligation regarding construction and maintenance

set forth in paragraph 9. Second, the plaintiffs contended that, notwithstanding the terms of the ground

lease, they submitted evidence demonstrating that the

defendant had exercised de facto control over the property, for example, by paying property taxes that USPS

later reimbursed.
In its reply brief, the defendant countered that (1)

the indemnification language set forth in paragraph 8

did not provide the defendant with a right to order

USPS to maintain the property or alter the fact that

the defendant retained no control or possession of the

property, and (2) evidence of the defendant purportedly

exercising de facto control over the property was immaterial because the ground lease contained unequivocal

terms providing that the defendant had no control or

possession of, and thus no responsibility to maintain,

the property.

In granting the defendant’s motion for summary judgment as to the plaintiffs’ negligence claim, the trial court

first concluded that the ground lease provided that

USPS, rather than the defendant, was in possession

and control of the property. The court determined that

paragraph 9 of the ground lease gave USPS the right to

construct on and to maintain the property. Additionally,

the court determined that nowhere in the ground lease

did the defendant reserve the right to perform maintenance or repairs that USPS failed to undertake, and

the court rejected the plaintiffs’ proposition that the

indemnification language set forth in paragraph 8 of

the ground lease granted such a right. The court then

addressed and rejected the plaintiffs’ contention that

the evidence submitted by them demonstrated that the

defendant maintained de facto control of the property.

In sum, the court concluded: ‘‘[The] [p]laintiffs have

failed to submit evidential facts that would raise an

issue of fact concerning the [defendant’s] control over

the property, and thus have provided no basis for recognition of a duty by the [defendant] to maintain or repair

the property to abate the conditions of which [the]

plaintiffs have complained. Without a duty to act to

prevent harm to the plaintiffs, there is no basis for

claiming the [defendant’s] failure to act was unreasonable.’’

On appeal, the plaintiffs assert that the court improperly determined that there was no genuine issue of

material fact that the defendant did not exert control

over the property. Specifically, the plaintiffs claim that

(1) the ground lease was ambiguous as to whether the

defendant had control of the property, and (2) in the

alternative, notwithstanding the terms of the ground

lease, evidence that they submitted in opposition to the

defendant’s motion for summary judgment demonstrated that the defendant exercised de facto control

over the property. For the reasons that follow, these

claims are unavailing.

A

We first turn to the plaintiffs’ claim that the ground

lease contained ‘‘clearly inapposite and contradictory

terms pertaining to issues of control’’ of the property,

and, therefore, the trial court improperly determined
that the terms of the ground lease clearly and unambiguously established that the defendant did not exert control over the property. The plaintiffs observe that paragraph 9 of the ground lease provided USPS with the right

and obligation to ‘‘construct and maintain all buildings,

structures and improvements’’ on the property

‘‘[e]xcept as otherwise provided’’ in the ground lease.

The plaintiffs contend that the indemnification clause

set forth in paragraph 8 of the ground lease signaled

that ‘‘the signatories of the [g]round [l]ease manifestly

acknowledged that there could be occasions when . . .

USPS might be negligent in its leasehold of the premises

and that [the defendant] would cure such negligence,

so long as [the defendant] was indemnified by USPS.’’

Thus, the plaintiffs argue, paragraph 8 could be construed as providing the defendant with ‘‘the right, obligation, and duty to prevent and [to] abate conditions

on its property that might be dangerous or interfere

with the rights of others, and to enforce the [g]round

[l]ease to prevent such conditions,’’ thereby constituting an exception to USPS’ right and obligation to build

on and to maintain the property as described in paragraph 9. We are not persuaded.

‘‘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; (3) the lease must be construed as a whole

and in such a manner as to give effect to every provision,

if reasonably possible. . . . A determination of contractual intent ordinarily presents a question of fact for

the ultimate fact finder, although where the language

is clear and unambiguous, it becomes a question of law

for the court.’’ (Citations omitted; internal quotation

marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275–76, 709 A.2d 558 (1998). ‘‘Furthermore, when the language of the [lease] is clear and

unambiguous, [it] is to be given effect according to its

terms. A court will not torture words to import ambiguity [when] the ordinary meaning leaves no room for

ambiguity . . . . Similarly, any ambiguity in a [lease]

must emanate from the language used in the [lease]

rather than from one party’s subjective perception of

[its] terms.’’ (Internal quotation marks omitted.) Bristol

v. Ocean State Job Lot Stores of Connecticut, Inc., 284

Conn. 1, 8, 931 A.2d 837 (2007).

Mindful of the foregoing principles, we conclude that

the ground lease, in clear and unambiguous terms,

demised full control of the property to USPS and

divested any control of the property from the defendant.

The ground lease contained no express language permitting the defendant to enter the property and to per-
form maintenance or repairs, or to demand that USPS

maintain the property. By comparison, paragraph 9 of

the ground lease explicitly provided that USPS, ‘‘at its

own cost and expense, shall construct and maintain all

buildings, structures and improvements on the demised

premises,’’ subject to the qualifying clause stating

‘‘[e]xcept as otherwise provided’’ in the ground lease,

and that ‘‘[USPS’] responsibility for maintenance shall

be fulfilled at such time and in such manner as [USPS]

considers necessary.’’ We reject the plaintiffs’ contention that the qualifying clause of paragraph 9, when

read in conjunction with the indemnification language

set forth in paragraph 8, raised an ambiguity as to

whether the defendant maintained control of the property. We discern no logical connection between the

indemnification language of paragraph 8 and the qualifying clause contained in paragraph 9. As the trial court

aptly summarized in its memorandum of decision: ‘‘A

tenant’s failure to maintain the property may give rise

to a damages remedy, indemnification or even to termination of the tenancy but those remedies are not the

functional equivalent of lease terms requiring a tenant

to make repairs or reserving to the landlord the right

to step in to make repairs required to maintain the

property.’’5

Moreover, our rejection of the plaintiffs’ interpretation of the ground lease does not render the qualifying

clause of paragraph 9 meaningless. For example, paragraph 21 of the ground lease provided: ‘‘It is understood

and agreed that as part of the consideration, [USPS]

has the right to raze any and all existing structures or

improvements, including utilities and lines which now

exist on the demised premises and that [USPS] shall

not be obligated to rebuild, restore nor make any further

[remuneration] for such razing, removal or alteration

of such buildings, structures or improvements.’’6 Paragraph 21 constituted an exception to USPS’ right and

obligation to construct and to maintain ‘‘all buildings,

structures, and improvements’’ on the property.7

In sum, we conclude that the trial court properly

determined that, pursuant to the clear and unambiguous

terms of the ground lease, the defendant did not maintain control of the property and, as a result, did not

owe a duty of care to the plaintiffs. Thus, the plaintiffs’

claim fails.

B

We next turn to the plaintiffs’ alternative claim that,

notwithstanding the terms of the ground lease, the

plaintiffs submitted evidence demonstrating that the

defendant exerted de facto control over the property.

The defendant argues that the ground lease, in unequivocal terms, expressed that the defendant did not maintain control of the property, and, therefore, it is unnecessary to consider whether the defendant exercised de

facto control of the property. We agree with the
defendant.

In a premises liability case, it is proper for a court

to consider extrinsic evidence to determine whether a

lessor reserved control over leased premises unless the

issue of control is definitely expressed in a lease. As

our Supreme Court explained in LaFlamme v.

Dallessio, 261 Conn. 247, 802 A.2d 63 (2002), ‘‘[t]he

issue of whether the landlord retained control over a

specific area of the premises is essentially a matter of

intention to be determined in the light of all the significant circumstances. . . . Thus, [u]nless it is definitely

expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the

exclusive dominion of the tenant, and it becomes a

question of fact and is a matter of intention in the light

of all the significant and attendant facts which bear on

the issue. . . . In other words, if the terms of control

are not express between the parties, the question of

who retains control over a specific part of the property

is an issue of fact and a matter of intent that can be

determined only in light of all the relevant circumstances.’’ (Citations omitted; emphasis added; internal

quotation marks omitted.) Id., 257; see also Fiorelli v.

Gorsky, supra, 120 Conn. App. 308–309 (‘‘Unless it is

definitely expressed in the lease, the circumstances of

the particular case determine whether the lessor has

reserved control of the premises or whether they were

under the exclusive dominion of the tenant, and it

becomes a question of fact and is a matter of intention

in the light of all the significant and attendant facts

which bear on the issue. . . . Although questions of

fact ordinarily are not decided on summary judgment,

if the issue of control is expressed definitively in the

lease, it becomes, in effect, a question of law.’’ (Citation

omitted; emphasis altered; internal quotation marks

omitted.)).8

As we concluded in part I A of this opinion, the ground

lease clearly and unambiguously provided that USPS,

rather than the defendant, maintained control of the

property. Therefore, we need not consider whether the

defendant exercised de facto control over the property.9

II

The plaintiffs next claim that the trial court improperly granted the defendant’s motion for summary judgment as to their private nuisance claim on the ground

that there was no genuine issue of material fact that

the defendant did not interfere with the plaintiffs’ use

and enjoyment of their property. We disagree.

‘‘A private nuisance is a nontrespassory invasion of

another’s interest in the private use and enjoyment of

land. . . . The law of private nuisance springs from

the general principle that [i]t is the duty of every person

to make a reasonable use of his [or her] own property
so as to occasion no unnecessary damage or annoyance

to his [or her] neighbor. . . . The essence of a private

nuisance is an interference with the use and enjoyment

of land.’’ (Citations omitted; internal quotation marks

omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788

A.2d 496 (2002). ‘‘[I]n order to recover damages in a

common-law private nuisance cause of action, a plaintiff must show that the defendant’s conduct was the

proximate cause of an unreasonable interference with

the plaintiff’s use and enjoyment of his or her property.

The interference may be either intentional . . . or the

result of the defendant’s negligence.’’ (Citation omitted.) Id., 361. Our Supreme Court has explained that

the requirements of a private nuisance claim ‘‘relate to

the land subject to the nuisance and to the nature of

the interference, not to whether the conduct giving rise

to the interference was connected with the defendant’s

ownership or control of any land.’’ Ugrin v. Cheshire,

307 Conn. 364, 377, 54 A.3d 532 (2012).

The following additional facts and procedural history

are relevant to our disposition of the plaintiffs’ claim.

In their operative complaint, the plaintiffs alleged that

the defendant was liable for private nuisance because

(1) at the time that it acquired its interest in the ground

lease, the defendant was aware that the property was

in a dangerous condition, and (2) the defendant failed

to enforce its purported right under the ground lease

to require USPS to maintain the property or to take

other action to prevent or to abate the dangerous condition thereof.

In its motion for summary judgment, the defendant

asserted that there was no genuine issue of material

fact that it did not engage in conduct that caused the

dangerous condition of the property, the maintenance

of which was the sole responsibility of USPS, and, therefore, it could not be held liable for any claimed interference with the plaintiffs’ use and enjoyment of their

property.

In their memorandum of law in opposition to the

defendant’s motion for summary judgment, the plaintiffs argued that the defendant unreasonably interfered

with their enjoyment and use of their property by failing

to enforce its purported right under the ground lease

to require USPS to maintain the property or to take

other action to remediate the dangerous condition

thereof, despite knowing of said condition when it

assumed the ground lease. In its reply brief, the defendant reiterated that the ground lease conferred on USPS

the sole right and obligation to maintain the property,

such that it was USPS’ conduct in failing to maintain

the property that caused any claimed interference with

the plaintiffs’ use and enjoyment of their property.

In granting the defendant’s motion for summary judgment as to the plaintiffs’ private nuisance claim, the trial

court concluded that the plaintiffs ‘‘failed to produce
evidence of conduct by the [defendant] that interfered

with [the] plaintiffs’ use and enjoyment of their property. . . . [The defendant] had no legal duty to maintain or repair the [property] or to force USPS to do so.

. . . Without such [a] duty, the [defendant’s] failure to

act cannot be characterized as negligent or intentional

interference with [the] plaintiffs’ use and enjoyment of

their property.’’ (Footnotes omitted.)

On appeal, the plaintiffs contend that the trial court

improperly concluded that there was no genuine issue

of material fact that the defendant did not interfere

with their use and enjoyment of their property. More

specifically, the plaintiffs assert that the defendant

knew that the property was in a dangerous condition

when it acquired its interest in the ground lease, but

nevertheless failed to enforce its purported right under

the ground lease to require USPS to maintain the property or to remediate the property itself and then seek

reimbursement from USPS. This claim is unavailing.

As we concluded in part I A of this opinion, the ground

lease, in clear and unambiguous terms, demised full

control of the property to USPS. The ground lease further provided that USPS’ ‘‘responsibility for maintenance shall be fulfilled at such time and in such manner

as [USPS] considers necessary.’’ The ground lease provided the defendant with no right to enter the property

in order to perform maintenance or repairs or to

demand that USPS maintain the property. Under these

circumstances, the defendant’s inaction with regard to

the condition of the property cannot be characterized

as causing a negligent or intentional interference with

the plaintiffs’ use and enjoyment of their property.10

Accordingly, we conclude that the trial court properly

granted the defendant’s motion for summary judgment

as to the plaintiffs’ private nuisance claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In its appellate brief, the defendant argues that we should disregard

(1) certain documents included in the appendix to the plaintiffs’ principal

appellate brief that are not part of the trial court record, and (2) certain

‘‘unsupported factual assertions’’ in the plaintiffs’ principal appellate brief.

The purportedly improper material cited by the defendant has no bearing

on our resolution of the plaintiffs’ claims on appeal. Therefore, we need

not further address the defendant’s argument.

2 The plaintiffs did not allege any liability on the part of the defendant

with respect to 26 Catoonah Street, on which USPS operated a postal facility.

3

In their original complaint, the plaintiffs alleged that an abandoned structure stood on the property. In their operative complaint, the plaintiffs alleged

that the abandoned structure had been razed sometime after June 27, 2014.

The plaintiffs further alleged in their operative complaint, inter alia, that

the condition of the property attracted unsupervised minors and adults,

who trespassed, loitered, and possibly engaged in illicit activities on the

property, as well as dangerous wildlife.

4 The record reflects that the plaintiffs purchased their abutting property

in 2001 and sold it in 2014.

5 The plaintiffs assert that, during argument before the Second Circuit on

the appeal from the District Court’s summary judgment rendered in favor

of the defendant, one of the sitting judges commented that the language of

paragraph 9 was ambiguous regarding the extent to which USPS had control
of the property. The plaintiffs contend that the comments illustrate that

reasonable minds can differ as to whether the language of the ground lease

was ambiguous regarding the issue of control of the property. In its decision

disposing of the appeal, however, the Second Circuit did not reach the merits

of the plaintiffs’ claims; instead, it disposed of the appeal on jurisdictional

grounds by concluding that the District Court lacked supplemental jurisdiction over the plaintiffs’ state law claims. See Cohen v. Postal Holdings, LLC,

supra, 873 F.3d 404. We decline the plaintiffs’ invitation to consider any

statements made during argument by the judges of the Second Circuit to

have precedential or evidential value germane to our analysis.

6 Paragraph 21 of the ground lease was unaltered by the 1983 and 2006

amendments to the ground lease.

7 We also observe that the 1983 amendment to the ground lease provided,

inter alia, that USPS was prohibited from constructing any fences or barriers

on the leased premises other than a chain link fence described in the amendment. The 2006 amendment to the ground lease did not alter the foregoing

provision, which constituted another exception to USPS’ right and obligation

with respect to construction and maintenance set forth in paragraph 9 of

the ground lease.

8 The plaintiffs cite Martel v. Malone, 138 Conn. 385, 85 A.2d 246 (1951),

for the proposition that ‘‘even where there is a written lease [that] lodges

full control in the lessee, liability can attach to the lessor if, in fact, the lessor

exercised actual control.’’ The plaintiffs’ reliance on Martel is misguided.

In Martel, a jury returned a verdict against a lessor for injuries sustained

by a third party when he fell down a stairway attached to the outside of a

building owned by the lessor that led to a room leased to a lessee. Martel

v. Malone, supra, 138 Conn. 387–88. At the time of the third party’s injury,

the lessor and the lessee maintained an oral month-to-month lease. Id., 388.

The trial court set aside the verdict on the basis that no evidence existed

to warrant a finding that the lessor retained control over the stairway. Id.,

387. On appeal, our Supreme Court affirmed the trial court’s decision. Id.,

392. In doing so, the court concluded that, without an express or implied

agreement to the contrary, control of the stairway passed to the lessee by

virtue of the lease. Id., 390. The court proceeded to determine that (1) there

was no evidence of an express agreement providing that the lessor retained

control of the stairway, and (2) there was no evidence demonstrating the

existence of an implied agreement providing that the lessor retained control

over the stairway. Id., 390–92.

Our Supreme Court subsequently cited Martel for the proposition that

extrinsic evidence was relevant to the issue of control over leased premises

when a written lease did not definitely or expressly resolve the issue. See

Panaroni v. Johnson, 158 Conn. 92, 99, 256 A.2d 246 (1969) (‘‘The written

lease read as a whole cannot be said to definitely or expressly resolve the

issue of control. Thus the actual use of the stairway, the circumstances

attending its use, and the evidence as to repairs become relevant to the

issue of actual control. Martel v. Malone, [supra, 138 Conn. 391].’’). Thus,

Martel aligns with the case law establishing that extrinsic evidence concerning the issue of control of leased premises may be considered unless the

issue is definitely expressed in a lease.

9

In granting the defendant’s motion for summary judgment as to the

plaintiffs’ negligence claim, in addition to concluding that the defendant did

not exert control over the property under the terms of the ground lease,

the trial court rejected the merits of the plaintiffs’ claim that there was

evidence demonstrating that the defendant exercised de facto control over

the property. Having concluded that the ground lease unequivocally resolved

the issue of control, it was unnecessary for the trial court to consider the

merits of the plaintiffs’ claim regarding de facto control.

10 The plaintiffs emphasize that the defendant leased the property to USPS

with knowledge that the property was in a dilapidated state. The plaintiffs

rely on appellate decisions reflecting that a lessor may be held liable for a

nuisance if the nuisance existed when the lease was executed or renewed.

See, e.g., Bergman v. Jacob, 125 Conn. 486, 489–90, 7 A.2d 219 (1939) (lessor

not liable for public nuisance caused by condition on premises created by

lessee after execution of lease); Swift & Co. v. Peoples Coal & Oil Co., 121

Conn. 579, 592, 186 A. 629 (1936) (‘‘Ordinarily a landlord is not liable for a

nuisance created upon premises he [or she] has leased where that nuisance

did not exist when they were leased or was not a result reasonably to be

anticipated from their use for the purpose and in the manner intended. . . .

The reason for this rule is that, having leased the premises, the landlord

ordinarily is without power to control their use. But if a nuisance arises
from the use of the premises during the period of the lease, he [or she] has

it within his [or her] power to abate that nuisance at the expiration of the

period for which they were rented and if, knowing that it exists he [or she]

takes no steps to this end but renews the lease, liability then attaches.’’

(Citations omitted.)); Calway v. William Schaal & Son, Inc., 113 Conn. 586,

592, 155 A. 813 (1931) (‘‘it is settled law that where an owner leases premises

upon which there is a nuisance which will continue if they are used for the

purpose and in the manner intended he [or she] is liable for damages resulting

from that nuisance’’)

In the present case, the plaintiffs did not allege that the property was in

a dangerous condition when the ground lease was executed in 1982. Moreover, the defendant did not become the sole lessor of the property until

2011, well after the ground lease had been executed. In addition, the plaintiffs

have not identified any evidence in the record reflecting that a renewal of

the ground lease occurred between 2011, when the defendant became the

sole lessor of the property, and 2014, when the plaintiffs sold their abutting

property. Thus, the present case is distinguishable from those situations

involving lessors who executed or renewed leases notwithstanding the presence of conditions on the leased premises that constituted nuisances.