author: BEAR, J.

text:
    CHRISTOPHER NORTON v. COMMISSIONER OF CORRECTION
    (AC 32434)
    DiPentima, C. J., and Bear and West, Js.

      Argued November 7, 2011
    officially released January 10, 2012

      Robert T. Rimmer, for the appellant (petitioner).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, former state’s attorney, and Marcia A. Pillsbury, special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Christopher Norton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas coipus. On appeal, the petitioner claims that the court improperly denied his petition for certification to appeal because his claims of ineffective assistance of counsel had merit. Specifically, the petitioner claims that there was merit to his ineffective assistance claims because his trial counsel was ineffective for failing to (1) investigate witnesses, (2) have blood analysis conducted on a metal pipe and (3) discuss with the petitioner in a meaningful manner the petitioner’s claim of self-defense. Additionally, the petitioner claims that the habeas court improperly analyzed the prejudice prong, as established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), of his ineffective assistance of counsel claims. We dismiss the appeal.

The record reveals the following relevant facts. The petitioner and his brother, Henry Gaines, after driving onto Oak Street in New Britain, got into an altercation with some individuals, including the sixteen year old victim, Juan Carlos Soto. From a distance of approximately ten feet, the petitioner shot Soto in the head. The petitioner and his brother thereafter fled the scene. As a result of this shooting, Soto became a quadriplegic, unable to move below his neck. On May 9, 2005, the petitioner entered guilty pleas to the charges of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. He also admitted to nine violations of probation for previous felony convictions. The court revoked the petitioner’s probation and sentenced him to a total effective term of twenty-two years incarceration. The petitioner did not file a direct appeal from his conviction.

On February 25,2009, the petitioner filed an amended petition for a writ of habeas corpus, alleging that his trial counsel had rendered ineffective assistance by failing to investigate witnesses, conduct blood analysis on a metal pipe and meaningfully discuss with the petitioner the petitioner’s claim of self-defense. Following a trial on the merits of the petition, at which only two witnesses testified, namely, the petitioner and his criminal trial counsel, the habeas court, in a very thorough oral decision, denied the petition. The court, thereafter, denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal from its judgment denying his petition for a writ of habeas corpus. The petitioner argues that the court erred in rejecting his claims that trial counsel had rendered ineffective assistance. He further claims that the habeas court also utilized an improper standard when it analyzed prejudice pursuant to Strickland-Hill. There is no error.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, 115 Conn. App. 99, 104, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Id., 103-104.

To prevail on the merits of a constitutional claim of ineffective assistance of counsel, a habeas petitioner must establish deficient performance and actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687; see also Hill v. Lockhart, supra, 474 U.S. 59. For ineffective assistance claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland, and for ineffective assistance claims resulting from guilty pleas, we apply the standard set forth in Hill. See Hill v. Lockhart, supra, 59 (modifying Strickland standard for analyzing prejudice in cases where petitioner entered guilty plea).

To satisfy the performance prong under Strickland-Hill, “the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ....

“To satisfy the prejudice prong [under Strickland-Hill], the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, supra, 115 Conn. App. 104-105. We also note, however, “that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 722-23, 789 A.2d 1046 (2002). We now examine the petitioner’s underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying the petition for certification to appeal.

I

The petitioner first claims that trial counsel was ineffective for failing to investigate witnesses. He argues that trial counsel “provided ineffective assistance . . . by refusing or neglecting to investigate witnesses put forth by [the petitioner].” He also argues that his testimony at the habeas trial revealed that he had asked trial counsel during trial preparation to “contact the eyewitnesses interviewed by the police and to interview [the petitioner’s] brother and sisters for information that they had relating to this case.” Counsel’s failure to do this, the petitioner argues, amounted to ineffective assistance. We are not persuaded.

The following additional facts are relevant to our resolution of the petitioner’s claim. The petitioner was the only witness to testify on his behalf at the habeas trial. He testified that he asked trial counsel to interview his siblings and to find the witnesses who had spoken to the police. He stated that these siblings were not present at the shooting but that he wanted trial counsel to interview them as character witnesses. He also stated that he did not recall the names of the witnesses who had spoken to the police and did not know whether they had given written statements. The petitioner stated that these witnesses could verify that the petitioner was being attacked at the time of the shooting and that his sisters would verify that the petitioner “never had a gun [and] . . . wasn’t the type to walk around with a gun.” The petitioner testified that trial counsel did not conduct any of these suggested interviews. We note that, although the petitioner alleges that his trial counsel should have interviewed these people because they had relevant information, he did not subpoena or otherwise produce any of them to testify at the habeas trial.

The petitioner’s trial counsel was the only other witness at the habeas trial; he testified for the respondent, the commissioner of correction. Trial counsel testified, in relevant part, that the petitioner had requested that counsel speak with family members who would verify the petitioner’s character and that the petitioner did not carry a gun. Trial counsel stated that he did speak to the petitioner’s mother, his current girlfriend and another family member, and that he then explained to the petitioner that these family members did not have information that was relevant to the petitioner’s case. He also testified that he reviewed the police report of the shooting and all of the witness statements, which numbered at least nine. He also provided copies of the police report and the witness statements to the petitioner. Trial counsel testified that the petitioner’s defense changed throughout the course of the case; that for the first six months that he represented the petitioner, the petitioner told him that he was not present at the shooting and that the police had coerced him into signing a confession; then, the petitioner told him that he was present at the scene but that a third person, who had been traveling with the petitioner and his brother in their vehicle, had committed the shooting. Trial counsel stated that the petitioner told him that it was up to trial counsel to discover, through an independent investigation, the name of the third person who was the shooter and that the petitioner would not reveal that information to trial counsel because he was not a snitch. However, trial counsel also testified that each of the eyewitnesses had stated that there were only two occupants in the petitioner’s vehicle. According to trial counsel, the petitioner again changed his story, then claiming that his brother was the actual shooter, and he maintained that story throughout trial preparation. Finally, near the start of evidence, the petitioner told trial counsel that he had shot the victim in self-defense while defending his brother who had been hit with a pipe.

Trial counsel also testified that he did not have an investigator interview the eyewitnesses to the shooting because there were at least nine witnesses who came forward, all with consistent statements. He explained that in cases where there were only one or two witnesses, he likely would investigate further, but in a case with nine eyewitnesses, each of whom corroborated the other, he did not think further investigation was warranted.

In rendering its oral ruling, the court found, inter alia, that trial counsel had interviewed family members of the petitioner, but that they were not helpful to the petitioner’s case because they were not present at the shooting. Additionally, the court found that it was unable to “speculate as to the identity of any witness or [to] the substance of what that witness might have said [if called to testify]. . . . [T]he record is bereft of any witness whose testimony or knowledge would somehow alter the outcome here .... Nine individuals .. . concurred that [the petitioner] was pointing a firearm at close range to the victim, without provocation or without justification, and [there was] ... [in counsel’s] mind [no] need for independent further investigation of the substance of [their] statements .... This court does not conclude that [counsel’s] decision to not investigate the veracity or the accuracy of any of these nine inculpatory consistent statements in any way constitutes deficient performance.” We agree with the habeas court.

“Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” (Internal quotation marks omitted.) Tatum v. Commissioner of Correction, 66 Conn. App. 61, 66, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.” Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). In this case, the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them. He makes only the bare allegation that his siblings would have said he did not carry a gun and that eyewitnesses to the shooting would have said he was being attacked. The petitioner, however, failed to call any of these individuals as witnesses at his habeas trial. The habeas court credited trial counsel’s testimony that he did interview family members and a girlfriend of the petitioner, and it found that trial counsel’s explanation for not having interviewed the nine witnesses who had given consistent statements to the police was reasonable. On the basis of the record before us, we agree with the habeas court. The petitioner has failed to establish that farther investigation of these witnesses would have been helpful to his defense or that counsel’s decision not to interview the eyewitnesses amounted to ineffective assistance. See Tatum v. Commissioner of Correction, supra, 66; Holley v. Commissioner of Correction, supra, 175; Nieves v. Commissioner of Correction, supra, 624.

II

The petitioner next claims that trial counsel was ineffective for failing to have blood analysis conducted on a metal pipe. He argues that his testimony at the habeas trial established that he and his brother were driving on Oak Street when someone smashed the rear window of their vehicle and began beating his brother with a metal pipe. Further, he argues, blood analysis of this pipe would have corroborated his story that he acted in self-defense to stop the attack on his brother. We are not persuaded.

During the habeas trial, the petitioner testified that he had asked trial counsel to perform a blood analysis of the pipe to provide support for a self-defense theory. Trial counsel testified, however, that the petitioner never asked him to have the pipe tested and, further, that there was no evidence that the petitioner’s brother had been injured by the pipe, so blood analysis would not have been helpful. The habeas court credited trial counsel’s testimony and agreed that analysis would not have been helpful to the petitioner’s defense. On appeal, the petitioner argues that a DNA test can be conducted without evidence that the injured party was bleeding as a result of an attack and that the habeas court erred in concluding that testing would not have been helpful. He argues that trial counsel’s failure to have forensic analysis conducted on the pipe amounts to ineffective assistance. We do not agree.

As stated previously, it is the petitioner’s burden to demonstrate what benefit additional investigation or testing would have revealed. Holley v. Commissioner of Correction, supra, 62 Conn. App. 175. Mere allegation and speculation are insufficient. See Miller v. Commissioner of Correction, 116 Conn. App. 357, 365, 976 A.2d 6 (“[t]o prevail on a petition for a writ of habeas corpus, mere conjecture does not suffice”), cert. denied, 293 Conn. 930, 980 A.2d 915 (2009); Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768 (petitioner’s burden not met by speculation but by demonstrable realities), cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). Because the petitioner failed to offer any forensic evidence at the habeas trial related to the pipe, he cannot demonstrate that the lack of an investigation involving the pipe constituted deficient performance. There was no evidence that the pipe contained any DNA of the petitioner’s brother, and the petitioner did not recall whether his brother, who did not testify, even sustained any injury from the pipe. Additionally, there is no indication that an analysis of the pipe, even if it had contained DNA from the petitioner’s brother, would have been helpful to the petitioner’s defense and changed the outcome of a trial. See Baillargeon v. Commissioner of Correction, supra, 67 Conn. App. 723. The court found, on the basis of trial counsel’s testimony, that it was not until evidence was about to open in the petitioner’s case that the petitioner even admitted to trial counsel that he was the person who had shot the victim; prior to that time, the petitioner repeatedly had changed his story to trial counsel — from the first story that he was not present at the scene of the shooting, to the second story that, although he was present at the scene, a third person actually had shot the victim, to the third story that his brother had shot the victim, to the final story that, although he had shot the victim, he did so in defense of his brother, who was being hit with a pipe. On the basis of the foregoing, we are unable to conclude that the court erred in finding that counsel was not deficient for not conducting a blood analysis of the metal pipe.

Ill

The petitioner also claims that counsel was ineffective for failing to discuss with the petitioner in a meaningful manner the petitioner’s claim of self-defense. He argues that he testified during his habeas trial that he had asked trial counsel “on multiple occasions to discuss his self-defense claims . . . [and that counsel] refused to ever discuss these claims with him.” The respondent argues in relevant part that the court “credited [trial counsel's] testimony that he and the petitioner actually had discussed the self-defense claim at length and that, based on that conversation, the petitioner decided to change his plea and resolve the case short of trial.” We agree with the respondent.

During the habeas trial, the petitioner testified that he had asked counsel on several occasions to discuss with him a claim of self-defense but that counsel was not willing to discuss this defense. Contrary to the petitioner’s testimony, trial counsel testified that the petitioner repeatedly changed his story about what had occurred at the shooting and that the petitioner did not raise a claim of self-defense until evidence was about to open in his case. He further testified that as soon as the petitioner revealed this new information, he asked the court for a recess and fully discussed this with the petitioner for approximately two hours. Trial counsel also stated that he explained to the petitioner that such a defense likely would be unsuccessful in light of the state’s case against him. Specifically, he testified that he believed that the petitioner’s new theory “was an act of desperation and, based on the state’s case, it was [his] position that [the petitioner] would not prevail at trial on a self-defense claim. [Trial counsel thought] the state of the evidence was that the state would be able to prove that [the petitioner] and his brother went [to the crime scene] to provoke a confrontation . . . thereby resulting in a shooting. And also [that there were] a number of witnesses [whose] statements were consistent that [the petitioner] pointed the gun at close range in the face of the victim. So, based on that, [trial counsel and the petitioner] spent time discussing that evidence, and [trial counsel] believed [the petitioner] was convinced that he could not prevail on a [theory of] self-defense. And at that point [the petitioner] decided that he would not continue to trial and he would change his plea and plead guilty.” Trial counsel further explained that he thought the petitioner should plead guilty because it was likely, on the basis of the strength of the state’s case and the pending charges, that the petitioner, if he went to trial, “likely [would] be convicted of assault in the first degree, conspiracy to commit assault in the first degree and possibly attempted murder, and carrying a pistol without a permit.” The habeas court credited trial counsel’s testimony and found that trial counsel had discussed this defense with the petitioner in a meaningful manner once the petitioner raised the defense and that there was no need for trial counsel to conduct a further investigation of a self-defense theory in light of the strength of the state’s case.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 123 Conn. App. 424, 428, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011). Here, the habeas court specifically found that trial counsel was not deficient because trial counsel in fact had discussed with the petitioner the petitioner’s newly raised claim of self-defense and that he had explained to the petitioner that such a defense was not plausible in this case because of the strength of the state’s case. Because the court’s finding that trial counsel was not deficient in this regard was based on a credibility determination, we must defer to the court’s assessment. Acceptance of the petitioner’s claim would require us to ignore the habeas court’s finding that trial counsel was credible and that the petitioner was not credible. This we cannot do.

IV

The petitioner’s final claim is that the habeas court improperly utilized a subjective test for prejudice rather than an obj ective test as required by Strickland v. Washington, supra, 466 U.S. 687, and Hill v. Lockhart, supra, 474 U.S. 59. Although our review of the habeas court’s oral decision reveals no such error, we, nonetheless, conclude that a thorough analysis of this claim is unnecessary in light of our conclusion that the court properly found that trial counsel did not render deficient performance. See Mock v. Commissioner of Correction, supra, 115 Conn. App. 105 (reviewing court can find against petitioner on either ground of two-pronged ineffective assistance test).

Accordingly, we conclude that the petitioner has not shown that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Therefore, the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal reflects an abuse of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that the written transcript provided to this court by the petitioner contains only the oral decision of the habeas court rather than the complete habeas trial. The electronic version of the transcript provided to us, however, contains the trial in its entirety. Accordingly, we conclude that, despite the petitioner’s failure to adhere strictly to our rules of practice; see Practice Book §§ 63-8 and 63-8A; the record provided is adequate for our review.

       The habeas court found that the petitioner’s attorney determined that “[n]ine individuals . . . concurred that [the petitioner] was pointing a firearm at close range to the victim, without provocation or without justification,” and the court found that it was reasonable for such attorney “to conclude in all likelihood that these [nine] statements would carry corroborative weight, or the majority of them would.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DEAN B. HOLLIDAY v. COMMISSIONER OF CORRECTION
    (AC 31819)
    Lavine, Robinson and Bishop, Js.
    Argued November 30, 2011
    officially released January 10, 2012

      Dean B. Holliday, pro se, the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Erika Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The self-represented petitioner, Dean B. Holliday, appeals after the habeas court denied his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal, (2) improperly denied his petition for a writ of habeas corpus, (3) abused its discretion by denying his request for a handwriting expert and (4) denied his right to confrontation and compulsory process in failing to compel a witness to appear pursuant to subpoena. We dismiss the appeal.

The petitioner was convicted, following a jury trial, of “attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135 (a) (1).” State v. Holliday, 85 Conn. App. 242, 243, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). The petitioner was sentenced to twenty-five years in the custody of the respondent, the commissioner of correction. The petitioner’s conviction was upheld on appeal to this court. Id., 264. In his petition for a writ of habeas corpus filed on May 5, 2009, the petitioner alleged ineffective assistance of trial counsel and ineffective assistance of appellate counsel.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Id., 616.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 116 Conn. App. 400, 404, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008).

Our review of the habeas court’s detailed oral memorandum of decision discloses that the court made a number of credibility determinations that were adverse to the petitioner. Specifically, the court found the testimony of the petitioner’s trial counsel more credible than that of the petitioner, particularly with regard to pretrial plea offers, advisement of the maximum sentence to which the petitioner was exposed and whether the petitioner at the time of trial told counsel that he believed his signature had been forged on the statement he gave the police. With regard to the assistance provided the petitioner by his trial and appellate counsel, the court found the petitioner’s counsel more credible than the petitioner’s expert witnesses, who provided “an analysis toward finding fault after the fact . . . .” See Grant v. Commissioner of Correction, 121 Conn. App. 295, 304, 995 A.2d 641 (eliminate distorting effects of hindsight), cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010). The court stated, “[w]hat is important is what the attorney knew at the time he knew it and the judgment he made with the information he knew or reasonably should have known.”

As to the petitioner’s claims that the habeas court failed to compel the testimony of certain witnesses, our review of the record supports the court’s finding that there was no evidence that the testimony of those individuals would have been exculpatory or changed the outcome of trial. See Caban v. Commissioner of Correction, 113 Conn. App. 165, 170, 965 A.2d 601 (record devoid of evidence that could have changed outcome of trial), cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). The court found that a report prepared by the Department of Veterans Administration was not in possession of the state or trial counsel at trial. The petitioner obtained it in 2005 pursuant to a freedom of information request. See 5 U.S.C. § 552 (b) (7) (C). As to compelling Gregory Augustine, a Veterans Administration detective, to testify, any testimony he might have offered was irrelevant, collateral and hearsay.

On July 8, 2009, the petitioner filed a motion for the appointment of a handwriting expert. The court heard the motion on July 14, 2009, and declined to rule on the midtrial request to avoid tainting its consideration of trial evidence. The court ordered that the motion be calendared and heard by another court before the habeas trial reconvened on October 30,2009. The record before us does not reveal that the motion was ruled on. The appellant bears the responsibility for providing this court with an adequate record for review. See Practice Book § 61-10. The petitioner has not met his burden, as the record is inadequate for our review. See also footnote 3 of this opinion. We conclude therefore that the court did not abuse its discretion in denying certification to appeal.

The appeal is dismissed.

       The petitioner represented himself at the habeas trial with the assistance of standby counsel.

       The trial court initially sentenced the petitioner to forty years in prison. The petitioner sought review of his sentence, and the sentence review division recommended an effective sentence of twenty-five years with a mandatory period of five years incarceration.

       At trial, counsel filed a motion to suppress the petitioner’s statement. The issue raised by the motion, however, was whether the petitioner gave the statement voluntarily, not whether the signature was fraudulent. The petitioner never brought the issue of his signature to the attention of trial counsel.


author: BISHOP, J.

text:
    SUNNY G. LIBERTI v. ROBERT D. LIBERTI
    (AC 33006)
    Lavine, Robinson and Bishop, Js.
    Submitted on briefs November 18,2011
    officially released January 10, 2012

      Kristina Bordieri and James M. Smith filed a brief for the appellant (plaintiff).

      Lori Welch-Rubin and Noah Eisenhandler filed a brief for the appellee (defendant).

      Steven R. Dembo and P. Jo Anne Burgh filed a brief for the guardian ad litem for the minor child.
   Opinion

BISHOP, J.

The plaintiff, Sunny G. Liberti, appeals from the trial court’s pendente lite order awarding the defendant, Robert D. Liberti, sole custody of the parties’ minor child and requiring the plaintiff to have supervised visitation with the child. On appeal, the plaintiff claims that the court (1) violated her right to procedural due process by holding an evidentiary hearing on the defendant’s emergency motion for immediate sole custody and supervised visitation and by requiring her to proceed with an attorney who requested to withdraw from representing her and (2) abused its discretion by denying her motion to reargue the order granting the defendant’s emergency motion for immediate sole custody and supervised visitation. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our consideration of the plaintiffs claims. On July 2, 2009, the plaintiff filed an action to dissolve the parties’ marriage, to which the defendant filed a counterclaim. The parties have one child, a son bom on December 9,2003. The parties first appeared in court on a pendente lite motion on December 3, 2009. At that time, they entered into an agreement by which they would share joint legal custody of the child. The parties also stipulated that the plaintiff would have physical custody of the child and the defendant would have visitation, which included overnight visits at his parents’ home. The agreement did not require that visitation be supervised, although the defendant did agree to a provision that his mother “shall be present in the home for any overnight visitation.” The parties later stipulated that “a qualified attorney” would be appointed as a guardian ad litem for the child.

On August 3, 2010, the defendant filed an ex parte motion for immediate sole custody of the minor child, which was scheduled for a hearing on August 6, 2010. Before the hearing date, however, the parties participated in a special master’s session through which they succeeded in securing an agreement to modify their parenting plan to include, among other provisions, shared physical custody of the child and increased visitation time for the defendant. The agreement made no mention of the prior requirement that the defendant’s mother be present for overnight visitation.

During her deposition on November 3,2010, the plaintiff made allegations of abuse against the defendant with respect to the child and disclosed documentation that allegedly demonstrated the abuse, which the defendant, defense counsel and the guardian ad litem had never seen prior to the deposition. The following day, the plaintiffs attorney filed a motion to withdraw his appearance, which was scheduled to be heard on November 8, 2010. On November 8, 2010, the defendant filed an emergency motion for immediate sole custody and supervised visitation. The court informed the parties that the defendant’s motion would be heard that day. No objection to the immediacy of the hearing was made by either party or the guardian ad litem. In addition, the plaintiff did not express any concern about having her attorney represent her despite his pending motion to withdraw. During the ensuing hearing on the defendant’s motion, the plaintiff testified. Additionally, the defendant and the guardian ad litem testified and were cross-examined by the plaintiffs counsel. A witness on behalf of the plaintiff also testified at the hearing. Both parties’ counsel then presented closing arguments. Neither party requested a continuance to allow an opportunity to produce additional witnesses or documentary evidence, nor did they suggest that they were unable to present certain evidence due to the short notice.

At the conclusion of evidence, the court granted the defendant’s emergency motion for immediate sole custody and supervised visitation. After a brief recess, the court reconvened and heard argument regarding the motion to withdraw filed by the plaintiffs counsel. The court specifically inquired of the plaintiff whether she wanted her attorney to withdraw, to which she responded affirmatively. Thereafter, the court granted the motion to withdraw.

On November 29, 2010, the plaintiff, as a self-represented party, filed a motion to reargue in which she raised, for the first time, her claim that the court violated her due process rights in proceeding with the hearing on the emergency motion. Although the court summarily denied the motion, the plaintiff did not file a motion for articulation of the factual or legal bases for the court’s ruling. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court violated her constitutional right to procedural due process by holding an evidentiary hearing on the defendant’s emergency motion for immediate sole custody and supervised visitation and by requiring her to proceed with an attorney who requested to withdraw from representing her. We disagree.

Although the plaintiff failed to raise her constitutional claims before the trial court, we acknowledge that a party may prevail on unpreserved constitutional claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). It is well established, however, that parties must affirmatively seek Golding review, and the moving party bears the burden of establishing an entitlement to appellate review of unpreserved constitutional claims. State v. Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005). In the present case, however, the plaintiff does not seek review under Golding. Her brief makes no mention of, or request for, Golding review regarding either of the alleged constitutional violations. Because the plaintiff failed to. make any objection at trial and has not now provided this court with a basis to review her unpreserved claims, we decline to afford them appellate review. Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (“[i]t is not appropriate to engage in a level of review that is not requested” [internal quotation marks omitted]).

II

The plaintiff also claims that the court abused its discretion when it denied her motion to reargue the court’s order granting the defendant’s emergency motion for immediate sole custody and supervised visitation. We disagree.

The standard of review for a court’s denial of a motion to reargue is abuse of discretion. Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). “When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Citation omitted; internal quotation marks omitted.) Id., 451-52.

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).

As a threshold matter, we note that the plaintiff has not provided this court with a basis to review meaningfully the denial of her motion to reargue the defendant’s emergency motion for immediate sole custody and supervised visitation. See Practice Book § 61-10. We do not have before us a written memorandum or articulation of the basis for the court’s denial of the motion to reargue. We do note, however, that there is nothing in the bare record provided to us from which we can discern that the court abused its discretion in denying the plaintiffs motion to reargue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the defendant’s emergency motion for immediate sole custody and supervised visitation failed to comply with Practice Book § 25-26 (e) because it did not allege the specific factual or legal basis for the requested custody modification. The plaintiff did not file an objection to the motion and now speculates as to the effect of the defendant’s allegedly faulty motion. Further, the plaintiff did not file a motion for articulation of the court’s decision. Instead, to support her claim, the plaintiff, misconstruing relevant decisional law and constitutional provisions, alleges a constitutional right to due process in the context of custody under a jurisprudential scheme for property rights and argues that the court’s ruling on an insufficiently pleaded motion violated her right to be heard at a meaningful time and in a meaningful manner. For the reasons articulated in part I of this opinion regarding unpreserved claims, we decline to review this claim.


author: Per Curiam.

text:
    LARRY L. DAIGNEAULT v. STATE OF CONNECTICUT, JUDICIAL BRANCH, ET AL.
    (AC 33170)
    Bear, Espinosa and Sullivan, Js.
    Argued October 17
    officially released November 1, 2011
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES DENTLEY v. COMMISSIONER OF CORRECTION
    (AC 32222)
    DiPentima, C. J., and Lavine and Borden, Js.
    Argued October 17
    officially released November 8, 2011
   Per Curiam.

The appeal is dismissed as moot.


text:
    FELIPE MULERO v. COMMISSIONER OF CORRECTION
    (AC 32392)
    Lavine, Alvord and Bishop, Js.
    Argued October 19
    officially released November 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    HABIB J. GASTON v. COMMISSIONER OF CORRECTION
    (AC 32214)
    DiPentima, C. J., and Beach and Foti, Js.
    Argued October 21
    officially released November 8, 2011
   Per Curiam.

The appeal is dismissed.


text:
    KHALID IBRAHIM v. COMMISSIONER OF CORRECTION
    (AC 31963)
    Gruendel, Lavine and Espinosa, Js.
    Argued October 21
    officially released November 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MICHAEL JAMES PELELLA
    (AC 30843)
    Lavine, Alvord and Borden, Js.
    Argued October 24
    officially released November 15, 2011
   Per Curiam.

The judgments are affirmed.


text:
    CITY OF BRIDGEPORT v. ALI LIAQUAT ET AL.
    (AC 32931)
    Gruendel, Bear and Dupont, Js.
    Argued October 26
    officially released November 15, 2011
   Per Curiam.

The judgment is affirmed.


text:
    EARL G. v. COMMISSIONER OF CORRECTION
    (AC 31980)
    Beach, Espinosa and Peters, Js.
    Argued October 26
    officially released November 15, 2011
   Per Curiam.

The appeal is dismissed.


text:
    TYEHIMBA ADEYEMI v. COMMISSIONER OF CORRECTION
    (AC 33020)
    DiPentima, C. J., and Robinson and Alvord, Js.
    Submitted on briefs October 28
    officially released November 15, 2011
   Per Curiam.

The appeal is dismissed.


text:
    LEONARD BALCUNAS v. COMMISSIONER OF CORRECTION
    (AC 32002)
    Gruendel, Beach and Bishop, Js.
    Submitted on briefs October 28
    officially released November 15, 2011
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. GREGORY M. FIELDS
    (AC 31968)
    Robinson, Alvord and Pellegrino, Js.
    Argued October 28
    officially released November 15, 2011
   Per Curiam.

The judgment is affirmed.


text:
    JASON MANN v. COMMISSIONER OF CORRECTION
    (AC 32287)
    Lavine, Bear and Espinosa, Js.
    Submitted on briefs October 28
    officially released November 15, 2011
   Per Curiam.

The appeal is dismissed.


text:
    EASTERN SAVINGS BANK, FSB v. ROBERT GILEWSKI
    (AC 32456)
    Lavine, Bear and Espinosa, Js.
    Submitted on briefs October 28
    officially released November 15, 2011
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    STATE OF CONNECTICUT v. DENNIS J. MOORE
    (AC 32741)
    Gruendel, Beach and Peters, Js.
    Argued November 9
    officially released December 6, 2011
   Per Curiam.

The judgment is affirmed.


text:
    KEENAN CORLEY v. COMMISSIONER OF CORRECTION
    (AC 31767)
    Bear, Bishop and Lavery, Js.
    Argued November 14
    officially released December 6, 2011
   Per Curiam.

The appeal is dismissed.


text:
    JEREMIAH PEREZ v. COMMISSIONER OF CORRECTION
    (AC 32159)
    Robinson, Bishop and SchaUer, Js.
    Argued November 17
    officially released December 13, 2011
   Per Curiam.

The appeal is dismissed.


text:
    JASON L’MINGGIO v. COMMISSIONER OF CORRECTION
    (AC 33315)
    Lavine, Robinson and Bishop, Js.
    Submitted on briefs November 18
    officially released December 13, 2011
   Per Curiam.

The appeal is dismissed.


text:
    TROY THOMAS v. COMMISSIONER OF CORRECTION
    (AC 31871)
    DiPentima, C. J., and Beach and Espinosa, Js.
    Submitted on briefs November 18
    officially released December 13, 2011
   Per Curiam.

The appeal is dismissed.


text:
    HARRY T. CONSTAS v. JOSEPH RISOLI ET AL.
    (AC 33129)
    Lavine, Beach and Alvord, Js.
    Argued November 18
    officially released December 13, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ROSHUN C. JONES v. COMMISSIONER OF CORRECTION
    (AC 33021)
    Gruendel, Alvord and Bear, Js.
    Submitted on briefs November 18
    officially released December 13, 2011
   Per Curiam.

The appeal is dismissed.


text:
    JASON MILLER v. COMMISSIONER OF CORRECTION
    (AC 32746)
    Beach, Espinosa and Flynn, Js.
    Argued November 30
    officially released December 20, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DOMINICK O. MAGGIORE
    (AC 32934)
    Lavine, Alvord and Bear, Js.
    Argued November 29
    officially released December 20, 2011
   Per Curiam.

The judgment is affirmed.


text:
    JOANNE MANZO v. CONNECTICUT GASTROENTEROLOGY CONSULTANTS, P.C., ET AL.
    (AC 32061)
    Bear, Espinosa and Mihalakos, Js.
    Argued December 5
    officially released December 20, 2011
   Per Curiam.

The judgment is affirmed.


author: ROBINSON, J.

text:
    VIDIAKI, LLC v. JUST BREAKFAST AND THINGS!!! LLC, ET AL.
    (AC 32554)
    Beach, Robinson and Espinosa, Js.

      Argued October 13, 2011
    officially released January 17, 2012

      Kevin E. Booth, with whom were Geraldine Ficarra and, on the brief, Richard J. Pascal, for the appellant (plaintiff).

      Jon B. Chase, with whom, on the brief, was Richard S. Cody, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The present case arises from a lease dispute between the landlord plaintiff, Vidiaki, LLC, and the tenant defendant Just Breakfast & Things!!! LLC. The plaintiff appeals from the judgment rendered in favor of the defendant after a trial to the court. On appeal, the plaintiff contends that the court erred in (1) ruling that General Statutes § 47a-11 did not apply to commercial tenancies because such ruling violated the law of the case doctrine, (2) finding that § 47a-11 did not apply to commercial tenancies, (3) dismissing count one of the amended complaint, (4) not allowing the plaintiff to plead the sixth count of the complaint in the alternative and (5) dismissing the sixth count of the complaint. We reverse the judgment as to count one of the amended complaint and affirm the judgment in all other respects.

The record discloses the following facts and procedural history. The plaintiff and the defendant entered into a commercial lease agreement on July 31, 2007, for the use and occupancy of premises located at 13 River Road, Route 12, in Lisbon. The terms of the lease provided that the lease was to terminate on June 30, 2009. On April 8, 2009, the plaintiff served on the defendant a notice to quit possession of the subject premises. The defendant failed to quit possession of the premises, and the plaintiff then filed a five count summary process complaint on April 24, 2009. In the first count of the complaint, the plaintiff alleged a violation of the lease agreement. The second count alleged a claim that the defendant had violated the rules and regulations adopted by the plaintiff in accordance with General Statutes § 47a-9. The third count set forth a claim that the defendant violated § 47a-11. In the fourth count, the plaintiff alleged that the defendant and Endless Vacations violated the lease agreement. The fifth count alleged that the defendant no longer had the privilege or right to occupy the subject premises. The plaintiff filed a second notice to quit on June 30, 2009, asserting that the lease had terminated by lapse of time. The plaintiff filed an amended complaint on July 8, 2009, in which it withdrew count two and count five, and asserted count six setting forth a claim that the lease had terminated by lapse of time.

The defendant filed a motion to strike count six of the amended complaint on September 9,2009, asserting that it was legally insufficient to state a claim on which relief could be granted. The trial court, Young, J., denied the motion on September 21, 2009. The defendant filed a motion to dismiss count six of the amended complaint on October 6, 2009, contending that the first notice to quit served on April 8, 2009, terminated the lease and created a tenancy at sufferance. Judge Young granted the defendant’s motion and dismissed count six of the complaint.

The defendant filed a motion for summary judgment as to the first and third counts on November 30, 2009. Judge Young, sua sponte, dismissed the first and fourth counts of the plaintiffs complaint based on a lack of subject matter jurisdiction and denied the defendant’s motion for summary judgment as to count three.

The Hon. Joseph H. Goldberg, judge trial referee, conducted a trial on the remaining counts on June 28 and 29, 2010. In its memorandum of decision, the court determined that § 47a-11 did not apply to commercial tenancies, and, as such, found in favor of the defendant as to count three of the complaint. See footnote 1 of this opinion. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first argues that the court erred in ruling that § 47a-11 did not apply to commercial tenancies when that conclusion was contrary to earlier rulings in the case. The plaintiff asserts that the previous rulings constituted the law of the case, and, accordingly, the court should not have diverged from the conclusion already reached on the issue of the applicability of § 47a-11 to commercial tenancies. We disagree. Because application of the law of the case doctrine involves a question of law, our review is plenary. See General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn. App. 673, 681, 971 A.2d 41 (2009).

The following additional facts are relevant to the resolution of the plaintiffs claim. The defendant filed a motion for summary judgment on November 30, 2009. The defendant contended that summary judgment on count three was appropriate because § 47a-11 did not apply to commercial leases. In its memorandum of decision on the motion for summary judgment dated February 4, 2010, the court, Young, J., concluded that “[a]s there is no direct appellate holding or legislative guidance to the contrary on this issue, this court finds that commercial tenants are subject to the provisions of General Statutes § 47a-11.”

On April 5,2010, the defendant and Endless Vacations moved to dismiss count three of the complaint due to a lack of subject matter jurisdiction, alleging that § 47a-11 did not apply to commercial tenancies. Judge Young held a hearing on June 14, 2010, and denied the defendant’s motion. In making its determination, the court stated, “I would like to reiterate . . . that the court recognizes there’s a lack of legislative and appellate guidance on this issue as to applicability of various sections of the chapter to commercial leases .... I do note that defense counsel has alleged [that § 47a-11 does not apply to commercial tenancies] as one of his special defenses, so I presume that we’re going to see this again during the litigation of this matter. I’m not going to preclude counsel from arguing it to Judge Goldberg, so there is no finality here today on this motion. ... I don’t want to take the issue away from Judge Goldberg if he makes a determination that based on the totality of facts presented to him as he finds them that this decision cannot be reversed, I guess is what I’m trying to say. In other words, I’m not tying his hands.”

A trial was held on June 28 and 29, 2010. After the conclusion of the trial, Judge Goldberg found in favor of the defendant as to count three and concluded that § 47a-11 did not apply to commercial tenancies. The court noted that our Supreme Court previously had recognized that chapter 830 of the General Statutes, which includes § 47a-11, applies only to residential tenancies; however, the legislature in 1997 added two provisions to chapter 830 that expressly refer to commercial tenancies. The trial court then sought to determine if the 1997 provisions altered the existing statutory scheme of chapter 830 so that § 47a-11 applies to commercial tenancies. After examining the text of § 47a-11 and the definitions pertaining to chapter 830, Judge Goldberg determined that § 47a-11 does not apply to commercial tenancies.

We begin our analysis of the plaintiffs claim with a review of the law of the case doctrine. The law of the case doctrine “expresses the practice of judges generally to refuse to reopen what [already] has been decided .... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. . . .

“A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he [or she] has the same right to reconsider the question as if he [or she] had himself [or herself] made the original decision. . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case .... According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law. . . .

“This court has determined that although a judge should be hesitant to rule contrary to another judge’s ruling, he or she may do so [nevertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed .... By way of example, this court has noted that [t]he adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor ... is a common illustration of this principle. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656-57, 954 A.2d 816 (2008).

On the basis of our review of the record, it is apparent that the parties did not understand Judge Young’s decision to determine conclusively, for purposes of the case, that § 47a-11 applies to commercial leases. Rather, Judge Young explicitly stated at the hearing on June 14, 2010, that he presumed that this issue would arise again during the litigation of the case and that his determination was not final, nor did it preclude the defendants from arguing to the contrary before Judge Goldberg. Although Judge Young previously determined in ruling on the motion for summary judgment that § 47a-11 applies to commercial leases, at the hearing on June 14, 2010, he explicitly left open the possibility of an alternative interpretation by Judge Goldberg at the trial on the merits. Thus, the parties were aware that this issue might arise again during the course of litigation.

Furthermore, the law of the case doctrine does not preclude a judge from deciding an issue in a way contrary to how it was decided by a predecessor judge in the same case. The plaintiff argued at oral argument before this court that a court must explicitly mention the prior ruling against which it is deciding. The plaintiff, however, does not provide any authority for such a rule. Although Judge Goldberg did not explicitly state that Judge Young had decided the issue previously, and that he disagreed with that conclusion, he could still decide the issue differently without violating the law of the case doctrine. It is also important to note that in this case, the prior ruling at issue occurred in a summary judgment proceeding. The law of the case doctrine provides that judges may treat a prior ruling as the law of the case if they agree with the determination. He or she may, however, decide the issue differently if he or she is convinced that the prior decision is wrong. On the basis of the memorandum of decision following the trial, it is apparent that Judge Goldberg disagreed with Judge Young on the issue of the applicability of § 47a-11 to commercial leases. As a result, it was not necessary for Judge Goldberg to treat Judge Young’s prior rulings as the law of the case. Therefore, we find no error.

II

The plaintiff next contends that the trial court erred in determining that § 47a-11 did not apply to commercial tenancies. The plaintiff argues that there is both statutory and appellate authority to demonstrate that commercial tenancies fall within the ambit of § 47a-11. After examining the language of § 47a-11 and the relevant appellate authority, we disagree with the plaintiff and conclude that § 47a-11 is not applicable to commercial tenancies.

As the plaintiffs claim presents a question of statutory interpretation, the trial court’s legal conclusions are subject to plenary review. Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case .... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) Id., 722.

We begin our review with the language of the statute. Section 47a-11 provides: “A tenant shall: (a) Comply with all obligations primarily imposed upon tenants by applicable provisions of any building, housing or fire code materially affecting health and safety; (b) keep such part of the premises that he occupies and uses as clean and safe as the condition of the premises permit; (c) remove from his dwelling unit all ashes, garbage, rubbish and other waste in a clean and safe manner to the place provided by the landlord pursuant to subdivision (5) of subsection (a) of section 47a-7; (d) keep all plumbing fixtures and appliances in the dwelling unit or used by the tenant as clean as the condition of each such fixture or appliance permits; (e) use all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators, in the premises in a reasonable manner; (f) not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so; (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15; and (h) if judgment has entered against a member of the tenant’s household pursuant to subsection (c) of section 47a-26h for serious nuisance by using the premises for the illegal sale of drugs, not permit such person to resume occupancy of the dwelling unit, except with the consent of the landlord.”

To interpret the language of § 47a-11, we must look to the definitions applicable to chapter 830 set forth in General Statutes § 47a-1. Of primary importance, the term “dwelling unit,” which is used throughout § 47a-11, is defined in § 47a-1 (c) as “any house or building, or portion thereof, which is occupied, is designed to be occupied, or is rented, leased or hired out to be occupied, as a home or residence of one or more persons.” (Emphasis added.) The term “dwelling unit” thus is clearly meant to refer to a home or residence. The term “dwelling unit” is included in various other definitions of terms found in § 47a-11 as defined in § 47a-1. For example, the term “landlord” is defined as “the owner, lessor or sublessor of the dwelling unit, the building of which it is a part or the premises.” General Statutes § 47a-1 (d). Likewise, the term “premises” also refers to the “dwelling unit” and is defined as “a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant.” General Statutes § 47a-1 (g). Last, the term “tenant” as used in § 47a-11, is defined as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.” (Emphasis added.) General Statutes § 47a-l (1). The terms as used in § 47a-11 all hinge on the term “dwelling unit,” which is statutorily defined to mean a home or residence. Based on the statutory definitions in § 47a-1, it is clear that § 47a-11 is designed to apply solely to residential premises.

The plaintiff argues that if § 47a-11 were not meant to govern commercial tenancies, the legislature would explicitly have excluded commercial tenancies under General Statutes § 47a-2, the provision entitled, in part, “Arrangements exempted from application of title.” We note that although commercial tenancies are not among the list of arrangements exempted, the arrangements that are listed all apply to particular living arrangements. By exempting only specific types of living arrangements from chapter 830, the legislature indicated its intent that chapter 830 apply only to residential tenancies.

The plaintiff argues that although § 47a-11 may not have applied to commercial tenancies at the time of its enactment, the 1997 Public Acts that codified chapter 830 altered the statutory scheme to make § 47a-11 applicable to commercial leases. The 1997 Public Acts added two relevant provisions to chapter 830, both of which use language that explicitly refers to commercial tenancies. When adding these provisions to the chapter, the legislature used specific language to demonstrate that these provisions were meant to apply to commercial tenancies. These are the only two provisions in chapter 830 that expressly use the term “commercial.” The fact that the legislature only used the term “commercial” in those two provisions and nowhere else in the chapter cannot go unnoticed by this court. See State v. Rupar, 293 Conn. 489, 509, 978 A.2d 502 (2009) (“[a]s we have stated many times, [when] a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed” [internal quotation marks omitted]). Furthermore, in 1997, the legislature did not amend any of the other provisions in chapter 830 so as to make them applicable to commercial tenancies, and, more importantly, it did not amend the statutory definitions provided in § 47a-1. We cannot conclude solely on the basis of the 1997 additions that § 47a-11 was intended to apply to commercial tenancies when the definitions relate to residential dwelling units, and the legislature has made clear elsewhere in the chapter when commercial tenancies are included.

The plaintiff relies on Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454, 948 A.2d 379, cert. denied, 289 Conn. 906, 957 A.2d 873 (2008), to support its argument that § 47a-11 does in fact apply to commercial tenancies. Sproviero involved a commercial tenancy that was converted into a tenancy at sufferance when the landlord served the tenants with a notice to quit. Id., 462. The landlord claimed that the tenants had a statutory obligation under § 47a-11 to prevent sewage breakouts during the tenancy at sufferance. Id. On appeal, this court stated that “[although we agree with the [landlord] that the [tenants] statutorily were obligated not to conduct themselves in such a manner as to constitute a nuisance ... we cannot say that the court’s findings of fact show that the [tenants] behaved in such a manner or that any of these findings are clearly erroneous . . . .” (Citation omitted.) Id., 467. The court determined that the tenants were not at fault for the sewage breakouts; thus their actions did not constitute a nuisance. Id.

The plaintiff relies on the court’s dicta in Sproviero to argue that this court has accepted that § 47a-11 applies to commercial tenancies. We disagree with this assertion. Unlike the present case, in Sproviero, the court was not asked to determine whether § 47a-11 specifically applied to commercial tenancies. Rather, the court was tasked with determining whether the tenants had acted in a way that would constitute a nuisance. In reaching that decision, the court simply noted, indirectly, that the tenants had a statutory obligation not to conduct themselves in such a manner. We do not read the court’s dicta regarding a finding of nuisance as asserting that § 47a-11 applies to commercial tenancies.

This conclusion is further supported by our Supreme Court’s assertion in A & M Towing & Recovery, Inc. v. Guay, 282 Conn. 434, 923 A.2d 628 (2007), decided one year prior to the Sproviero decision. The court was tasked with determining whether public policy prevented a commercial lessor from recovering rent in the absence of a certificate of occupancy for the premises. Id., 439-40. Before reaching that issue, the court stated that “[t]his court previously has recognized . . . that, in accordance with the definitions set forth in chapter 830 that relate solely to dwellings; see General Statutes § 47a-1; this chapter generally applies only to residential tenancies.” A & M Towing & Recovery, Inc. v. Guay, supra, 442-43. Thus, one year prior to the Sproviero decision, our Supreme Court made clear that chapter 830 generally applies only to residential tenancies. Our reading of Sproviero is consistent with both A & M Towing & Recovery, Inc., as well as our interpretation of the statutory language in § 47a-11. On the basis of our reading of the statute, the other relevant provisions in chapter 830 and relevant appellate authority, we conclude that § 47a-11 does not apply to commercial tenancies. .

Ill

The plaintiff next contends that the court erred when it sua sponte dismissed the first count of the amended complaint on the ground that the notice to quit was insufficient to apprise the defendant of the alleged lease violations. The plaintiff argues that the wording in the notice to quit was sufficient. We agree.

The following additional facts are relevant to the resolution of the plaintiffs claim. The defendant contended in its November 30, 2009 motion for summary judgment that the April 8, 2009 notice to quit did not sufficiently apprise the defendant of the specific alleged lease violations. In the court’s memorandum of decision dated February 4, 2010, the court noted that “[a]s summary process is a statutory creation, this court’s jurisdiction is predicated upon compliance with such statutes. Any deviation or failure to comply with the statutory requirements will deprive the court of jurisdiction to hear the summary process action as to those claims. ... If the notice to quit is defective, this court has no subject matter jurisdiction as to those claims.” (Citations omitted.) The court found that “[i]n the present action, the subject lease is a commercial lease, thirteen pages in length, consisting of twenty-six sections. While it is possible that the defendants could have known the nature of the ‘violations of the lease,’ it is certainly also plausible that the defendants did not know all of the ‘violations of the lease’ that the plaintiff would ultimately claim in its complaint. . . . The court finds the notice to quit to be invalid as to claims of lease violations. The first and fourth counts, both of which are based upon the ‘violations of lease’ portion of the notice to quit, are hereby dismissed, sua sponte.”

The plaintiff contends that the notice to quit was sufficient to apprise the defendant of the alleged lease violations, and, as a result, the court erred in dismissing count one sua sponte. The plaintiff argues that the notice to quit included one of the provisions in General Statutes § 47a-23 (a) and followed the phrasing outlined in § 47a-23 (b), and, as a result, the notice was adequate. We agree.

We begin by noting the applicable standard of review. “A notice to quit is a condition precedent to a summary process action and, if defective, deprives the court of subject matter jurisdiction. . . . We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Furthermore, [s]ummary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Citations omitted; internal quotation marks omitted.) Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 5-6, 931 A.2d 837 (2007).

Summary process actions are governed by § 47a-23 (a), which provides in relevant part: “When the owner or lessor . . . desires to obtain possession or occupancy of any land or building, any apartment in any building, [or] any dwelling unit . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70 . . . (E) nonpayment of rent when due for commercial property; (F) violation of section 47a-11 . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit . . . .”

Section 47a-23 (b) specifies the type of notice required when serving a notice to quit: “The notice shall be in writing substantially in the following form: ‘I (or we) hereby give you notice that you are to quit possession or occupancy of the (land, building, apartment or dwelling unit, or of any trailer or any land upon which a trader is used or stands, as the case may be), now occupied by you at (here insert the address, including apartment number or other designation, as applicable), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). . . .’ ” (Emphasis added.)

The applicable notice to quit provided: “I hereby give you notice that you are to quit possession or occupancy of the premises now occupied by you at 13 River Road, Route 12, Lisbon, Connecticut 06351 as of April 13, 2009 for violations of the [l]ease, or of rules and regulations adopted in accordance with Conn. Gen. Stat. Section 47a-9; violations of Conn. Gen. Stat. Section 47a-11; when Endless Vacations II occupies the premises or part thereof, but it never had a right or privilege to occupy such premises; and/or as you originally had the right or privilege to occupy such premises, but such right or privilege has terminated.” (Emphasis added.)

Prior cases have addressed similar claims where a party contends that the notice to quit was defective. Generally, the notice to quit is considered adequate when the language of the notice to quit tracks the statutory language of § 47a-23 (a). In Bristol v. Ocean State Job Lot Stores of Connecticut, Inc., supra, 284 Conn. 6, the notice to quit ordered the defendant to quit the premises due to “(1) . . . lapse of time; (2) nonpayment of rent when due for commercial property; (3) by reason of any expressed stipulation therein; (4) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated.” (Internal quotation marks omitted.) On appeal, the court concluded that the notice to quit complied with the statutory requirements because all of the reasons Usted in the notice to quit were “enumerated in § 47a-23 (a).” Id. Likewise, in Thomas E. Golden Realty Co. v. Society for Savings, 31 Conn. App. 575, 580, 626 A.2d 788 (1993), the notice to quit provided that the defendant was to quit the premises due to “ ‘violation of the lease and nonpayment for additional rent.’ ” On appeal, we concluded that the trial court improperly determined the notice to quit was inadequate because the phrase “ ‘nonpayment for additional rent’ ” substantial tracked the language of § 47a-23 (a).

Here, the notice to quit stated that the defendant must quit the premises due to, among other things, “violations of the [l]ease . . . .” The language of the notice to quit significantly tracks § 47a-23 (a), which sets as one of the bases of a notice to quit “violation of the rental agreement or lease . . . .” Although the notice to quit did not lay out specifically the alleged lease violations, the notice tracked the statutory language of § 47a-23 (a), as mandated by § 47a-23 (b). Because the notice to quit adequately met the requirements of § 47a-23, the court improperly dismissed count one for lack of subject matter jurisdiction.

IV

The plaintiffs next two arguments are based on the dismissal of count six of the amended complaint, and the conclusions we reach as to each argument are interdependent. Accordingly, we address these two claims together. The plaintiff first contends that the court erred in not allowing the plaintiff to plead count six in the alternative. The plaintiff next contends that the court erred when it dismissed count six of the plaintiffs complaint because the notice to quit did not terminate the rental agreement between the parties.

The following additional facts are relevant to the resolution of the plaintiffs claim. Paragraph two of the parties’ lease agreement provided that the lease was to terminate on June 30, 2009. The plaintiff filed a second notice to quit on June 30, 2009, asserting that the lease was terminated by lapse of time. The plaintiff then filed an amended complaint alleging in count six that there had been a termination of the lease through lapse of time specified in the lease agreement.

The defendant filed a motion to strike count six of the amended complaint on September 10, 2009, asserting that it was legally insufficient to state a claim on which relief could be granted. Judge Young denied the motion on September 21, 2009, concluding that the plaintiff was entitled to plead in the alternative.

The defendant filed a motion to dismiss on October 6, 2009, contending that the first notice to quit served on April 8, 2009, terminated the lease and created a tenancy at sufferance. As such, the defendant contended that the lease was no longer in effect when the second notice to quit was served on the defendant, and, thus, the conclusion of the lease term was no longer effective. The court granted the motion to dismiss on November 23, 2009. The court determined that “[t]he first notice to quit terminated the lease and created a tenancy at sufferance. Consequently, at the time the second notice to quit was served for lapse of time under the lease, the lease agreement was no longer in effect. Accordingly, the sixth count of the complaint, which is premised on lapse of time pursuant to the second notice to quit, must be dismissed for lack of subject matter jurisdiction.”

We begin with the relevant standard of review. “Service of a valid notice to quit, which terminates the lease and creates a tenancy at sufferance ... is a condition precedent to a summary process action under § 47a-23 that implicates the trial court’s subject matter jurisdiction over that action. . . . Thus, the defendants’ motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.” (Citations omitted; internal quotation marks omitted.) Waterbury Twin, LLC v. Renal Treatment Centers-Northeast, Inc., 292 Conn. 459, 466-67, 974 A.2d 626 (2009).

“ [Summary process] is preceded by giving the statutorily required notice to quit possession to the tenant. . . . Service of a notice to quit possession is typically a landlord’s unequivocal act notifying the tenant of the termination of the lease. The lease is neither voided nor rescinded until the landlord performs this act and, upon service of a notice to quit possession, a [leasehold] is converted to a tenancy at sufferance.” (Citation omitted.) Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988).

In the present case, the plaintiff filed its first notice to quit on April 8, 2009, and filed its original complaint against the defendant on April 24,2009. While that claim was pending before the trial court, the plaintiff filed the second notice to quit, asserting lapse of time, on June 30, 2009. We first consider what effect the first notice to quit had on the lease agreement during the pendency of the action in the court and whether a second notice to quit based on the rental agreement could survive during that period.

In Sproviero v. J.M. Scott Associates, Inc., supra, 108 Conn. App. 454, the landlord served a notice to quit on the tenants, and, after completion of a trial, the court found in favor of the tenants. Id., 458-60. The landlord sought, under the terms of the rental agreement, reimbursement for costs incurred for maintaining the septic system during the pendency of the legal action. Id., 462. This court determined that the landlord could not recoup those costs because “[u]pon service of the notice to quit possession, the plaintiffs’ fixed tenancy was converted to a tenancy at sufferance, and the plaintiffs temporarily were relieved of their obligation[s] [under the rental agreement]. Accordingly, the lease was not in effect during the pendency of [the] litigation . . . .” (Emphasis added.) Id., 463.

In addition, although not binding on this court, it is helpful to analyze Superior Court decisions that have dealt with this specific issue. Several courts have dismissed actions based on a second notice to quit where the first notice to quit was valid and terminated the lease. Those trial courts have followed the line of reasoning that if “the first notice to quit was a nullity, then it is of no effect and the second notice to quit is effective. If, on the other hand, the first notice to quit was effective at least for the purpose of terminating the rental agreement, then the second notice to quit can not effectively be based [on violations of a lease or rental agreement], as there would have been no contractual rental agreement in effect at the time.” Sammy Redd & Associates v. May, Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. SPH-95376 (Januaiy 21, 1998) (22 Conn. L. Rptr. 107). Likewise, “[s]ince an action brought for lapse of time requires a landlord to prove the existence of an agreement, the service of the first notice to quit, if valid, would terminate any existing rental agreement and therefore render the notice to quit on which the present action is based invalid and deprive the court of subject matter jurisdiction.” Gifford v. Fore, Superior Court, judicial district of New Britain, Housing Session, Docket No. 053590 (March 18, 2010) (49 Conn. L. Rptr. 741).

We conclude that because the first notice to quit terminated the lease agreement between the parties, there could be no cause of action based on lapse of time when the second notice to quit was served. As made clear by Sproviero, a rental agreement is terminated when a valid notice to quit is served. The notice to quit terminates the lease, and the lease is no longer effective throughout the pendency of the trial court action. As this court determined in Sproviero, even if the trial court had found in favor of the tenants and the lease was reinstated, that would not mean that the lease was retroactively deemed effective from the time the notice to quit was filed. Furthermore, we agree with the Superior Court decisions that indicate that if the first notice to quit is technically valid and terminates the rental agreement, a second notice to quit based on terms in the rental agreement cannot survive a motion to dismiss for lack of subject matter jurisdiction. Common sense dictates that when a contractual rental agreement is no longer in place, such an agreement can no longer be violated.

The plaintiffs next contention is that the court erred in not allowing it to plead count six in the alternative. The plaintiff argues that it should have been permitted to plead count six in the alternative and to assert the second notice to quit in the event that the first notice to quit proved inadequate after trial. The plaintiff is correct in its assertion that it is entitled to plead various alternatives in its complaint, even when those assertions are contradictory. See Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985) (“[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint”). The issue here, however, is the order in which the plaintiff pleaded count six in the complaint. The plaintiff could have pleaded both the violations of the rental agreement and the lapse of time claims in its complaint, if the first notice to quit asserted both claims. After the plaintiff served the first notice to quit, however, the rental agreement was terminated, and there no longer was a rental agreement that could have lapsed. Thus, although the plaintiff may plead in the alternative, the plaintiff cannot hinge the second notice to quit on a term of the rental agreement, here the agreed upon conclusion of the rental agreement, when the lease had been terminated by the first notice to quit and thus was no longer in effect. Accordingly, the court did not err in dismissing count six of the amended complaint for lack of subject matter jurisdiction.

The judgment is reversed only as to the dismissal of count one of the amended complaint and the case is remanded for further proceedings as to that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also brought suit against the defendant Mary Thompson, doing business as Endless Vacations II (Endless Vacations). The court rendered judgment on count four of the complaint in favor of Endless Vacations and Just Breakfast & Things!!! LLC, at a posttrial hearing on July 9, 2010. The plaintiff did not appeal from that portion of the court’s judgment. Because Thompson is not a party to this appeal, we refer to Just Breakfast & Things!!! LLC, as the defendant.

       The plaintiff filed a motion to reargue, contending that the court improperly dismissed count four of the complaint despite the fact that it was not included in the motion for summary judgment. After a hearing on the matter, the court vacated the order pertaining to only count four on April 1, 2010.

       The defendant contends on appeal that the plaintiffs appeal was untimely, and, as a result, that it should be dismissed. On August 16, 2010, the defendant filed in this court a motion to dismiss the appeal as untimely. We denied that motion on November 3, 2010.

       General Statutes § 47a-2 (a) provides that particular arrangements are excluded from the chapter, including, “(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling or religious service, or any similar service; (2) occupancy under a contract of sale of a dwelling unit or the property of which such unit is a part, if the occupant is the purchaser or a person who succeeds to his interest; (3) occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of such organization; (4) transient occupancy in a hotel or motel or similar lodging; (5) occupancy by an owner of a condominium unit; and (6) occupancy by a personal care assistant or other person who is employed by a person with a disability to assist and support such disabled person . . .

       General Statutes § 47a-4b provides: “No lease of commercial space in a shopping center or in a building occupied by two or more businesses entered into on or after October 1,1979, shall require a lessee to be open for business seven days a week or on any specified day of the week. Any provision in a lease which violates this section shall be void.”
      General Statutes § 47a-11c provides in relevant part: “If a landlord terminates a residential or commercial tenancy on the grounds that the tenant committed a breach of the rental agreement and the landlord brings an action for damages for the breach, such damages shall include the amount of rent agreed to by the parties but unpaid by the tenant. . . .”

       The plaintiff also argued that the motion for summary judgment was barred by Practice Book §§ 10-7 and 10-32. Although the defendant filed a motion for summary judgment as to count one, the plaintiff contends that it in essence is a motion to dismiss, and the defendant had waived its right to contest the wording of the notice to quit because it had already filed a request to revise and motion to strike. This argument, however, is unavailing, as the count was not dismissed pursuant to the motion for summary judgment, but, instead, was dismissed by the court sua sponte after the court determined that it lacked subject matter jurisdiction. “The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . . .” (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). The court could dismiss the count at any time if it determined it lacked the requisite subject matter jurisdiction. The alleged procedural inadequacies of the motion for summary judgment then are not relevant to the dismissal of count one.

       The defendant cites Jefferson Garden Associates v. Greene, 202 Conn. 128, 520 A.2d 173 (1987), to demonstrate that the notice to quit should have included specific allegations of lease violations. The defendant asserts that Jefferson Garden Associates requires the notice to quit under § 47a-23 to be specific enough to allow for a tenant to cure violations or defend against them. Id., 143. As such, the defendant contends that simply stating that the notice to quit was being served due to violations of the lease agreement was insufficient. On the basis of our reading of Jefferson Garden Associates, we conclude that although the Supreme Court mentioned § 47a-23, the court’s rationale focused on the notice required under General Statutes § 47a-15. This reading is supported by the fact that “[§ 47a-15’s] notice provision has been interpreted to be separate from and preliminary to the maintenance of a summary process action pursuant to [General Statutes] § 47a-23.” (Internal quotation marks omitted.) Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993). Section 47a-15 is designed to provide “notice to the tenant specifying the alleged violations and offer the tenant a [period of time] to remedy.” St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn. App. 728, 734, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011). Under § 47a-15 “[i]f the tenant can remedy the violation by repair or by paying damages . . . the rental agreement continues. If the violation is not or cannot be remedied, the landlord may institute a summary process action . . . .” Housing Authority v. Harris, supra, 606. There is a clear distinction between the two statutory provisions: “A pretermination notice pursuant to § 47a-15 does not have the effect of terminating a tenancy or of altering the relationship of the landlord and tenant. ... In contrast, it is well established that service of a notice to quit possession pursuant to § 47a-23 is typically an unequivocal act terminating a lease agreement with a tenant.” (Citation omitted.) St. Paul’s Flax Hill Co-operative v. Johnson, supra, 735. Thus, § 47a-15 requires a necessary level of specificity in order to provide the tenant with the opportunity to remedy the violation. In contrast, a notice to quit under § 47a-23 terminates the lease agreement, and there is no opportunity to remedy the violation. It follows that a notice to quit under § 47a-23 does not require the same level of specificity as required under § 47a-15.