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DOCKET NO.: NNH-CV23-6130047-S : SUPERIOR COURT
:
HOPE THOMAS : J.D. OF NEW HAVEN
:
v. : AT NEW HAVEN
:
CVS PHARMACY, INC. : MARCH 3, 2023
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
MOTION TO IMPLEAD 327 MAIN AVENUE ASSOCIATES
Pursuant to Conn. Gen. Stat. § 52-102a and Connecticut Practice Book § 10-11, the
Defendant, Connecticut CVS Pharmacy, LLC, which has been incorrectly named as CVS
Pharmacy, Inc. (“CVS”), hereby submits the following Memorandum of Law in Support
of its Motion to Implead 327 Main Avenue Associates (“327 Main”).
FACTUAL BACKGROUND
By Writ, Summons and Complaint returnable March 21, 2023, the Plaintiff, Hope
Thomas commenced this action against CVS seeking damages for bodily injuries
sustained. Specifically, the Complaint alleges that on August 3, 2022, the Plaintiff fell as
a result of a pothole in the parking lot of the CVS store located at 327 Main Avenue in
Norwalk, Connecticut.
For all times material hereto, CVS and 327 Main, through themselves, their related
entities or their predecessor-in-interest, were parties to a lease agreement dated as of or
about December 23, 2002. The lease agreement makes clear that 327 Main Avenue
Associates was responsible for inspecting and maintaining the parking areas, including
the area of the alleged incident. Specifically, Section 28 of the lease states that the
landlord is to “maintain, repair and adequately light” the parking lot of the store. Section
33 of the lease further states as follows:
With respect to the parking and other exterior areas of Property, Landlord
shall perform the following, pursuant to good and accepted business
practices throughout the Term: repairing, repaving, restriping, and
resealing, of the Parking Areas…
Section 43 of the lease requires the landlord to defend and indemnify CVS for its
negligence as well as “any failure on the part of Landlord to perform or comply with any
of the covenants, agreements, terms, provisions, conditions or limitations contained in
this Lease on its part to be performed or complied with.” Section 43 also states, “In case
any action or proceeding is brought against Tenant by reason of any such claim,
Landlord, upon written notice from Tenant, shall, at Landlord's expense, resist or defend
such action or proceeding.”
ARGUMENT
Conn. Gen. Stat. § 52-102a and Practice Book § 10-11 provide that a defendant in a
civil action may move the Court for permission to serve a complaint as a third-party
plaintiff upon a person not a party to this action, but who is or may be liable for all or
part of the plaintiff’s claims against it. It is the defendant’s responsibility to implead a
non-party if it believes that the non-party is responsible for any of the plaintiff’s alleged
injuries. Bradford v. Atrzig, 33 Conn. App. 714, 723 (1991).
For the foregoing reasons, 327 Main Avenue Associates’ obligation to defend and
indemnify CVS in this case has clearly been triggered.
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CONCLUSION
Wherefore, CVS respectfully requests permission to join 327 Main Avenue
Associates and permit service of the attached Writ, Summons and Third-Party Complaint
on 327 Main Avenue Associates.
Respectfully submitted,
THE DEFENDANT,
By its attorneys,
/s/ Young B. Han
Young B. Han, Juris No. 434975
yhan@davids-cohen.com
DAVIDS & COHEN, P.C.
40 Washington Street, Suite 20
Wellesley, MA 02481
(781) 416-5055
CERTIFICATION
I certify that a copy of this document was or will immediately be mailed or
delivered electronically or non-electronically on March 3, 2023 to all attorneys and self-
represented parties of record and to all parties who have not appeared in this matter and
that written consent for electronic delivery was received from all attorneys and self-
represented parties receiving electronic delivery.
For the Plaintiff:
David A. Leff, Esq.
Levy, Leff & DeFrank, P.C.
129 Church Street, Suite 712
New Haven, CT 06510
/s/ Young B. Han
Young B. Han
3
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DOCKET NO.: NNH-CV23-6130047-S : SUPERIOR COURT : HOPE THOMAS : J.D. OF NEW HAVEN : v. : AT NEW HAVEN : CVS PHARMACY, INC. : MARCH 3, 2023 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO IMPLEAD 327 MAIN AVENUE ASSOCIATES Pursuant to Conn. Gen. Stat. § 52-102a and Connecticut Practice Book § 10-11, the Defendant, Connecticut CVS Pharmacy, LLC, which has been incorrectly named as CVS Pharmacy, Inc. (“CVS”), hereby submits the following Memorandum of Law in Support of its Motion to Implead 327 Main Avenue Associates (“327 Main”). FACTUAL BACKGROUND By Writ, Summons and Complaint returnable March 21, 2023, the Plaintiff, Hope Thomas commenced this action against CVS seeking damages for bodily injuries sustained. Specifically, the Complaint alleges that on August 3, 2022, the Plaintiff fell as a result of a pothole in the parking lot of the CVS store located at 327 Main Avenue in Norwalk, Connecticut. For all times material hereto, CVS and 327 Main, through themselves, their related entities or their predecessor-in-interest, were parties to a lease agreement dated as of or about December 23, 2002. The lease agreement makes clear that 327 Main Avenue Associates was responsible for inspecting and maintaining the parking areas, including the area of the alleged incident. Specifically, Section 28 of the lease states that the landlord is to “maintain, repair and adequately light” the parking lot of the store. Section 33 of the lease further states as follows: With respect to the parking and other exterior areas of Property, Landlord shall perform the following, pursuant to good and accepted business practices throughout the Term: repairing, repaving, restriping, and resealing, of the Parking Areas… Section 43 of the lease requires the landlord to defend and indemnify CVS for its negligence as well as “any failure on the part of Landlord to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Lease on its part to be performed or complied with.” Section 43 also states, “In case any action or proceeding is brought against Tenant by reason of any such claim, Landlord, upon written notice from Tenant, shall, at Landlord's expense, resist or defend such action or proceeding.” ARGUMENT Conn. Gen. Stat. § 52-102a and Practice Book § 10-11 provide that a defendant in a civil action may move the Court for permission to serve a complaint as a third-party plaintiff upon a person not a party to this action, but who is or may be liable for all or part of the plaintiff’s claims against it. It is the defendant’s responsibility to implead a non-party if it believes that the non-party is responsible for any of the plaintiff’s alleged injuries. Bradford v. Atrzig, 33 Conn. App. 714, 723 (1991). For the foregoing reasons, 327 Main Avenue Associates’ obligation to defend and indemnify CVS in this case has clearly been triggered. 2 CONCLUSION Wherefore, CVS respectfully requests permission to join 327 Main Avenue Associates and permit service of the attached Writ, Summons and Third-Party Complaint on 327 Main Avenue Associates. Respectfully submitted, THE DEFENDANT, By its attorneys, /s/ Young B. Han Young B. Han, Juris No. 434975 yhan@davids-cohen.com DAVIDS & COHEN, P.C. 40 Washington Street, Suite 20 Wellesley, MA 02481 (781) 416-5055 CERTIFICATION I certify that a copy of this document was or will immediately be mailed or delivered electronically or non-electronically on March 3, 2023 to all attorneys and self- represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self- represented parties receiving electronic delivery. For the Plaintiff: David A. Leff, Esq. Levy, Leff & DeFrank, P.C. 129 Church Street, Suite 712 New Haven, CT 06510 /s/ Young B. Han Young B. Han 3