Altavista Investments, LLC v. Makeeva

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ALTAVISTA INVESTMENTS, LLC v.
LEYLA MAKEEVA ET AL.
(AC 46885)
Elgo, Seeley and Westbrook, Js.
Syllabus
B Co., which held a note that was secured by a mortgage on the plaintiff’s
property, filed a motion to intervene in postjudgment summary process
eviction proceedings for the limited purpose of asserting its rights with
respect to use and occupancy payments made by the defendants and
participating in any proceedings to determine the final distribution of
those funds. The trial court held a hearing in accordance with the
applicable statute (§ 47a-35b), and denied B Co.’s motion to intervene,
determining that B Co. was not a proper party to the eviction action
because it did not have a possessory interest in the real property. On
B Co.’s appeal to this court, held that the trial court improperly failed
to permit B Co. to intervene in the postjudgment proceedings as a matter
of right, and, accordingly, this court reversed the trial court’s judgment
and remanded the case with direction to grant B Co.’s motion to inter-
vene and for further proceedings in accordance with § 47a-35b: pursuant
to the four factor test for intervention as of right, which the trial court
improperly failed to consider, this court had jurisdiction over the appeal
because B Co. demonstrated a colorable claim of intervention as of
right, such that the denial of its motion for intervention was a final
judgment for purposes of appeal; moreover, the trial court improperly
denied the motion to intervene on its merits because the motion was
clearly timely, as it was filed with the trial court during the pendency
of the appeal from the judgment of possession for the express purpose
of vindicating rights under § 47a-35b, pursuant to which the trial court
was not required to hold a hearing until the final disposition of the
appeal, B Co. had a direct right to the subject matter of the postjudgment
litigation, as neither the plaintiff nor the defendants contested B Co.’s
assertion that it had a contractual right to the use and occupancy pay-
ments, that right was a substantial one, as reflected in the amount of
the accumulated use and occupancy payments at issue, B Co.’s interest
would likely be impaired by any disposition in which it was not permitted
to participate because § 47a-35b expressly provides that the court’s
distribution of the accumulated use and occupancy payments is to be
conclusive, and B Co.’s interest in the use and occupancy payments
was clearly adverse to the interests of the plaintiff and the defendants,
and, accordingly, the existing parties to the litigation would not ade-
quately protect B Co.’s interest in obtaining the use and occupancy
payments; furthermore, because the § 47a-35b hearing was separate
and distinct from the underlying eviction action, whether B Co. had a
possessory interest in the property that was subject to the eviction
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Altavista Investments, LLC v. Makeeva
action was not a proper consideration for the trial court in determining
whether to grant the motion to intervene, instead, the court should have
determined whether B Co. had a sufficient interest in the § 47a-35b
hearing, and such interest was apparent from the record.
Argued March 11—officially released June 11, 2024

Procedural History

Summary process action, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
Housing Session, where the plaintiff withdrew the com-
plaint as to the defendant John Doe et al.; thereafter,
the court, Spader, J., rendered judgment against the
defendant Stanislav V. Lenskiy et al. for failure to
appear; subsequently, the court, Spader, J., rendered
judgment of possession for the plaintiff, from which
the named defendant et al. appealed to this court, which
affirmed the trial court’s judgment; thereafter, the court,
Cirello, J., denied the motion to intervene filed by Bao-
tou Capital, LLC, and Baotou Capital, LLC, appealed to
this court. Reversed; judgment directed; further pro-
ceedings.
Matthew B. Gibbons, with whom was Patrick M.
Fahey, for the appellant (proposed intervenor Baotou
Capital, LLC).
Opinion

WESTBROOK, J. In the underlying summary process
eviction action (eviction action), the trial court ren-
dered a judgment of possession against the defendant
Leyla Makeeva and seven other defendants, in favor of
the plaintiff, Altavista Investments, LLC.1 See Altavista
1
In addition to Makeeva, the following additional parties were named as
defendants in the underlying eviction action: Vladimir Lenskiy, Valerian
Lenskiy, Zinaida Lenskaya, Stanislav V. Lenskiy, Anastasia Lenskiy, Vitaly
Lenskiy, Ilana Lenskiy, and four additional occupants noticed by aliases in
accordance with General Statutes § 47a-23 (b). The action later was with-
drawn as to the unnamed defendants, and the court rendered judgment
against Stanislav V. Lenskiy, Anastasia Lenskiy, Vitaly Lenskiy, and Ilana
Lenskiy for failure to appear.
Neither the plaintiff nor any of the defendants filed a brief or otherwise
participated in the present appeal, and, consequently, this court issued an
order that they would not be permitted to participate in oral arguments and
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Investments, LLC v. Makeeva, 220 Conn. App. 901, 297
A.3d 285 (2023) (affirming judgment of possession).
Baotou Capital, LLC (Baotou), which holds a note
secured by a mortgage on residential property located
at 969 North Street in Greenwich (property), the prop-
erty at issue in the eviction action, filed the present
appeal from the denial of its postjudgment motion to
intervene on the basis of an ownership interest it claims
in use and occupancy payments made by the defendants
in lieu of bond during the pendency of the prior appeal.
See General Statutes § 47a-35a (a).2 Baotou claims that
the trial court improperly determined that, because it
lacked any possessory interest in the property, it was
not a proper party to the eviction action and, thus, also
was not entitled to intervene in postjudgment proceed-
ings pursuant to General Statutes § 47a-35b3 regarding
the final distribution of the use and occupancy pay-
ments. We agree that the court improperly failed to
permit Baotou to intervene as a matter of right and,
accordingly, reverse the judgment of the court.
The record reveals the following relevant facts and
procedural history. The plaintiff purchased the property
that the appeal would be considered solely on the basis of Baotou Capital,
LLC’s brief and oral argument, and the record as defined by Practice Book
§ 60-4.
2
General Statutes § 47a-35a (a) provides in relevant part that, if an ‘‘appeal
is taken by the defendant occupying a dwelling unit . . . in an action of
summary process,’’ the defendant must give the adverse party an appeal
bond or, ‘‘upon motion by the defendant and after [a] hearing,’’ the court
shall order, in lieu of a bond, ‘‘the defendant to deposit with the court
payments for the reasonable fair rental value of the use and occupancy of
the premises during the pendency of [an] appeal accruing from the date of
such order. . . .’’
3
General Statutes § 47a-35b provides: ‘‘Upon final disposition of the
appeal, the trial court shall hold a hearing to determine the amount due
each party from the accrued payments for use and occupancy and order
distribution in accordance with such determination. Such determination
shall be based upon the respective claims of the parties arising during the
pendency of the proceedings after the date of the order for payments and
shall be conclusive of those claims only to the extent of the total amount
distributed.’’
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in 2017. The plaintiff financed the purchase by execut-
4

ing a $4,940,000 note and a mortgage in favor of Baotou’s
predecessor in interest, Patriot Bank, N.A. (Patriot
Bank).5 Pursuant to the terms of the mortgage, in addi-
tion to a security interest in the property, the plaintiff
granted to Patriot Bank the plaintiff’s rights to ‘‘[a]ll of
the rents, receipts, revenues, income, issues thereof
and profits now due or which may become due or to
which [the plaintiff] may now or hereafter shall become
entitled . . . or may demand or claim, arising or issu-
ing from or out of any and all using, leasing, licensing,
possessing, operating from, residing in, selling or other-
wise enjoying the [m]ortgaged [p]roperty or any part
thereof . . . .’’ In addition to the note and mortgage,
the plaintiff also executed a separate assignment of
4
At the hearing on the motion to intervene, the defendants’ attorney
provided the court with the following undisputed background information
regarding the plaintiff’s purchase of the property and the relationships
between the various parties. ‘‘[T]he [plaintiff’s] principal . . . is a gentleman
named Vladimir Guzinsky. He is the sole owner of [the plaintiff]. [The
plaintiff] was formed solely for the purchase of [the property]. [Guzinsky]
was, at one time, the best friend of [the defendant] Vladimir Lenskiy . . . .
They and their wives and their children vacationed together, spent a signifi-
cant amount of time together. In 2002, [Vladimir Lenskiy] purchased the
[property]. In 2005 . . . he tore down the former home and finished the
construction on the house that stands on the property since that time . . . .
He and his wife raised their children in that home, the children grew up,
and he continues to reside in that home ever since 2005. In 2012, [Vladimir
Lenskiy] ran into some financial trouble with the bank that then had the
mortgage on the construction loan. And there was a period of years where
they were negotiating but eventually that bank started a foreclosure action
against [him]. [Vladimir Lenskiy] negotiated with that bank to give him
permission to sell the property at a short sale to [the plaintiff]. . . . [Guzin-
sky] formed [the plaintiff] to save his friend from the foreclosure action
and bought it at a short sale . . . in June of 2017, for $3.8 million. Two
months later, he financed the property with Patriot Bank . . . .’’ Guzinsky
allowed the defendants to retain possession of the property, and, although
Guzinsky ‘‘created a lease . . . between himself and [Vladimir Lenskiy]
. . . [Vladimir Lenskiy] had never paid [Guzinsky] rent.’’
5
The terms of the original note and mortgage were subsequently amended.
All references to the note and mortgage in this opinion are to the operative
amended loan documents.
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leases and rentals, which provided, in relevant part, an
assignment of ‘‘[a]ll rents, additional rents, payments
in connection with any termination, cancellation or sur-
render of any Lease, revenues, income, issues and prof-
its arising from the Leases and renewals and replace-
ments thereof and any cash or security deposited in
connection therewith and together with all rents, reve-
nues, income, issues and profits . . . from the use,
enjoyment and occupancy of the [p]roperty . . . .’’ As
part of the assignment of leases and rentals, Patriot
Bank granted the plaintiff a revocable license to collect
and receive rents and other sums due under any lease.
This license automatically was to be revoked in the
event of a default as set forth in the loan documents.
In October, 2019, the plaintiff entered into a pur-
ported multiyear arrangement with Makeeva to lease
the property for quarterly payments of $60,000. In June,
2020, Patriot Bank commenced a mortgage foreclosure
action (foreclosure action) against the plaintiff and its
tenants, which remains ongoing. See Patriot Bank, N.A.
v. Altavista Investments, LLC, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-20-
6047105-S.
In August, 2021, the plaintiff commenced the underly-
ing summary process eviction action alleging both non-
payment of rent and that the defendants’ right or privi-
lege to occupy the property had terminated. On June
14, 2022, the court, Spader, J., issued a memorandum
of decision concluding that, although the plaintiff had
failed to meet its burden with respect to its claim of
nonpayment of rent due to a lack of any enforceable
lease, it nevertheless had prevailed with respect to its
claim that any right of the defendants to occupy the
property had terminated. The court rendered a judg-
ment of possession in favor of the plaintiff with a stay
of execution through July 31, 2022. The court also con-
cluded that its ‘‘findings . . . regarding a lack of a
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rental agreement [do] not impact the plaintiff’s ability
to ask for use and occupancy payments in the event of
an appeal filed by the defendants.’’
The defendants Makeeva and Vladimir Lenskiy timely
appealed from the judgment of possession and also
filed a motion asking the court to order appropriate
use and occupancy payments in lieu of an appeal bond
with surety. The court granted the motion, ordering
the defendants to deposit monthly payments of $24,000
with the clerk of the court.
Shortly after the appeal was filed in the eviction action,
Patriot Bank assigned the operative note, mortgage,
and assignment of leases and rents to Baotou. The court
in the foreclosure action granted a motion to substitute
Baotou for Patriot Bank as the party plaintiff in that
action.
On February 7, 2023, Baotou filed a postjudgment
motion to intervene in the eviction action for the limited
purpose of asserting its rights with respect to the use
and occupancy payments being deposited with the clerk
of court and participating in any proceedings to deter-
mine the final distribution of those funds. Makeeva and
Vladimir Lenskiy initially filed an objection to the
motion to intervene in which they argued that such
intervention was ‘‘both premature and presumptuous’’
and that Baotou ‘‘must wait for the entry of judgment
in the foreclosure [action] and the resolution of the
appeal in the [eviction] action.’’ They later withdrew
their objection. The plaintiff also filed an objection to
the motion to intervene arguing that Baotou was not a
proper party to the eviction action, which is limited
to the issue of possession, and, thus, should not be
permitted to intervene.
In response to a May 12, 2023 caseflow request from
Baotou seeking adjudication of its motion to intervene,
the court, Cirello, J., issued an order that it would
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‘‘consider the motion to intervene . . . when it consid-
ers the use and occupancy disbursement required by
[§] 47a-35b.’’ On July 25, 2023, this court issued a memo-
randum decision affirming the judgment of possession.
Altavista Investments, LLC v. Makeeva, supra, 220
Conn. App. 901. The defendants did not file a petition
for certification to appeal to our Supreme Court.

The court scheduled a hearing on Baotou’s motion
to intervene for August 29, 2023. The court subsequently
issued an order denying the motion to intervene. The
court provided the following rationale for its ruling:
‘‘[Baotou] seeks to assert a money damages claim or a
right to money held by the clerk in this [eviction] action
for possession. [Baotou] is not the owner of the subject
property nor able to terminate the possessory interest
of the defendant[s] through eviction as authorized in a
summary process action. Its claims for the money held
by the clerk’s office are based on contract principles
and privity against the plaintiff . . . . As [Baotou] does
not seek a possessory interest in the subject property,
it is not a proper party to this action.’’ This appeal
followed.6

Rather than turning directly to the merits of the
appeal, Baotou, in its appellate brief, first addresses a
threshold issue, namely, whether this appeal was taken
from an appealable final judgment. See In re Santiago
G., 325 Conn. 221, 228, 157 A.3d 60 (2017) (‘‘[u]nless a
specific right to appeal otherwise has been provided
by statute, we must always determine the threshold
question of whether the appeal is taken from a final
judgment before considering the merits of the claim’’
6
On March 7, 2024, the plaintiff filed a caseflow request asking the court
to hold a hearing to distribute the $336,000 in use and occupancy payments
currently held by the court. Baotou filed an objection arguing that the court
should not hold a hearing until this court resolved its appeal regarding
Baotou’s right to intervene. The court sustained Baotou’s objection.
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(internal quotation marks omitted)). We agree with Bao-
tou that we have jurisdiction over the present appeal.
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final. General Stat-
utes §§ 51-197a and 52-263; Practice Book § [61-1]
. . . . The policy concerns underlying the final judg-
ment rule are to discourage piecemeal appeals and to
facilitate the speedy and orderly disposition of cases
at the trial court level. . . . The appellate courts have
a duty to dismiss, even on [their] own initiative, any
appeal that [they lack] jurisdiction to hear.’’ (Internal
quotation marks omitted.) Heyward v. Judicial Dept.,
159 Conn. App. 794, 799–800, 124 A.3d 920 (2015).
‘‘An otherwise interlocutory order is appealable in
two circumstances: (1) where the order or action termi-
nates a separate and distinct proceeding, or (2) where
the order or action so concludes the rights of the parties
that further proceedings cannot affect them. . . . That
the present matter arises postjudgment does not affect
that analysis: the final judgment rule still applies.’’ (Cita-
tions omitted; internal quotation marks omitted.) Rick-
etts v. Ricketts, 203 Conn. App. 1, 4–5, 247 A.3d 223
(2021); id., 5 (citing well established two part test of
appealability set forth in State v. Curcio, 191 Conn. 27,
31, 463 A.2d 566 (1983)).
‘‘General Statutes §§ 52-1027 and 52-1078 govern the
intervention of nonparties to an action and provide
7
‘‘General Statutes § 52-102 provides in relevant part: ‘Upon motion made
by any party or nonparty to a civil action, the person named in the party’s
motion or the nonparty so moving, as the case may be, (1) may be made a
party by the court if that person has or claims an interest in the controversy,
or any part thereof, adverse to the plaintiff, or (2) shall be made a party by
the court if that person is necessary for a complete determination or settle-
ment of any question involved therein . . . .’ ’’ BNY Western Trust v. Roman,
295 Conn. 194, 203 n.6, 990 A.2d 853 (2010).
8
‘‘General Statutes § 52-107 provides: ‘The court may determine the con-
troversy as between the parties before it, if it can do so without prejudice
to the rights of others; but, if a complete determination cannot be had
without the presence of other parties, the court may direct that such other
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for both permissive intervention and intervention as a
matter of right. . . . Therefore, under the second
prong of Curcio, whether the trial court’s action on a
motion to intervene is appealable depends on whether
intervention is an absolute right or a matter within the
trial court’s discretion. . . . [A]n unsuccessful appli-
cant for intervention in the trial court does not have a
final judgment from which to appeal unless he can make
a colorable claim to intervention as a matter of right.9
If he does make such a colorable claim, on appeal the
court has jurisdiction to adjudicate both his claim to
intervention as a matter of right and to permissive inter-
vention.10 . . .

‘‘In order for a proposed intervenor to establish that it
is entitled to intervene as a matter of right, the proposed
intervenor must satisfy a well established four element
conjunctive test: [T]he motion to intervene must be
timely, the movant must have a direct and substantial
interest in the subject matter of the litigation, the mov-
ant’s interest must be impaired by disposition of the
litigation without the movant’s involvement and the
movant’s interest must not be represented adequately
parties be brought in. If a person not a party has an interest or title which
the judgment will affect, the court, on his application, shall direct him to
be made a party.’ Accord Practice Book § 9-18; see also General Statutes
§ 52-108 and Practice Book § 9-19 (allowing new parties to be brought in).’’
BNY Western Trust v. Roman, 295 Conn. 194, 203–204 n.7, 990 A.2d 853
(2010).
9
See King v. Sultar, 253 Conn. 429, 435–36, 754 A.2d 782 (2000) (reas-
serting that denial of motion to intervene filed by person with colorable
claim to intervention as matter of right is final judgment for purposes of
appeal and holding that proposed intervenor has party status for purposes
of § 52-263).
10
‘‘A colorable claim is one that is superficially well founded but that may
ultimately be deemed invalid . . . . For a claim to be colorable, the [propo-
nent of the claim] need not convince the trial court that he necessarily
will prevail; he must demonstrate simply that he might prevail.’’ (Citation
omitted; emphasis in original; internal quotation marks omitted.) In re Santi-
ago G., supra, 325 Conn. 231.
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by any party to the litigation. . . . A proposed interve-
nor must allege sufficient facts, through its motion to
intervene and the pleadings, to make the requisite show-
ing of its right to intervene. . . . No additional testi-
mony or evidence is required. . . . Failure to meet any
one of the four elements, however, will preclude inter-
vention as of right.’’ (Citations omitted; footnotes
added; footnotes in original; footnotes omitted; internal
quotation marks omitted.) BNY Western Trust v.
Roman, 295 Conn. 194, 203–206, 990 A.2d 853 (2010).
For purposes of determining the jurisdictional issue,
we apply a plenary scope of review as to whether all
four elements have been met. Id., 207–208 n.12.11
Baotou’s motion for intervention in the present mat-
ter is atypical in that it was filed after the court rendered
a final judgment of possession and sought only to inter-
vene in postjudgment proceedings regarding distribu-
tion of use and occupancy payments. Regardless of
the precise procedural posture of the motion, however,
when we consider the four elements of the test for
intervention as of right, we are persuaded not only that
Baotou demonstrates a colorable claim of intervention
as of right such that the denial of its motion was a final
judgment for purposes of appeal, but also that the court
improperly denied the motion to intervene on its mer-
its.12 Because the same four factor test applies both to
the jurisdictional question and to our consideration of
the merits of the motion to intervene; see In re Santiago
G., supra, 325 Conn. 231–32; for brevity sake, we com-
bine our analysis of the four factors.
11
Our Supreme Court has clarified that ‘‘[t]he denial of a motion to inter-
vene as of right raises a question of law and warrants plenary review,
whereas a denial for permissive intervention is reviewed with an abuse
of discretion standard.’’ (Internal quotation marks omitted.) Kerrigan v.
Commissioner of Public Health, 279 Conn. 447, 454 n.10, 904 A.2d 137 (2006).
12
Because we conclude that the court should have permitted Baotou to
intervene as a matter of right, we do not consider the issue of permissive
intervention.
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The first element of the test is whether the motion
to intervene was timely. ‘‘Whether a motion to intervene
is timely involves a determination of how long the inter-
venor was aware of an interest before he or she tried
to intervene, any prejudicial effect of intervention on
the existing parties, any prejudicial effect of a denial
on the applicant and consideration of any unusual cir-
cumstances either for or against timeliness. . . . Fac-
tors to consider also include the nature of the interest
and the purpose for which the intervenor is seeking to
be brought into the action. . . . [T]here are no absolute
ways to measure timeliness . . . .’’ (Internal quotation
marks omitted.) Austin-Casares v. Safeco Ins. Co. of
America, 310 Conn. 640, 649, 81 A.3d 200 (2013).
Here, Baotou’s motion to intervene was timely.13 The
motion to intervene was filed with the trial court during
the pendency of the appeal from the judgment of posses-
sion for the express purpose of vindicating rights pursu-
ant to § 47a-35b, which governs the distribution of
accrued use and occupancy payments following an
appeal. Because the trial court was not required to
hold a hearing in accordance with § 47a-35b until ‘‘final
disposition of the appeal,’’ and Baotou filed its motion
to intervene while the appeal was still pending, the
motion was clearly timely.
The second and third elements of the test ask whether
the proposed intervenor has a direct and substantial
interest in the subject matter of the litigation and
13
Ordinarily, the timeliness of a motion would be an issue of fact for the
trial court that we would review on appeal under a clearly erroneous stan-
dard. See Alves v. Giegler, 348 Conn. 364, 385, 306 A.3d 455 (2024). In the
present case, however, the court made no findings regarding the timing of
the motion, and no one has raised a claim of untimeliness. The facts sur-
rounding the timing of the motion, however, are not in dispute. Under these
unique circumstances, it is appropriate for us to reach a conclusion regarding
the timeliness of the motion as a matter of law on the basis of the undisputed
facts in the record, both as to the threshold jurisdictional inquiry and with
regard to the merits of the motion to intervene.
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whether that interest would be impaired by a disposi-
tion without the involvement of the proposed interve-
nor. Because these factors are analytically related, we
consider them together. See Wallingford Center Associ-
ates v. Board of Tax Review, 68 Conn. App. 803, 812,
793 A.2d 260 (2002).
‘‘Intervention allows one who was not a party in an
original action to become a party upon his request. He
has a derivative role by virtue of an action already
shaped by the original parties. He takes the controversy
as he finds it and may not introduce his own claims to
restyle the action. . . . This is all the more true where
a statute allows intervention for a specified purpose.’’
(Citation omitted; internal quotation marks omitted.)
Nizzardo v. State Traffic Commission, 259 Conn. 131,
154, 788 A.2d 1158 (2002). Here, although § 47a-35b does
not expressly provide for the intervention of interested
parties, it tasks the trial court with holding ‘‘a hearing to
determine the amount due each party from the accrued
payments . . . .’’ The statute contains no language indi-
cating that only the current parties to the summary
process action may participate in the distribution pro-
ceedings. See General Statutes § 47a-35b; Franco v.
East Shore Development, Inc., 271 Conn. 623, 632, 858
A.2d 703 (2004) (despite use of term ‘‘party’’ in statute
authorizing statutory proceeding, nonparty intervention
was permitted in absence of express contrary indica-
tion). Both common sense and judicial economy dictate
that an outside entity with a demonstrable claim to a
share of the distribution should be permitted to inter-
vene in order to fulfill the purpose of the statute: an
equitable distribution of the accrued payments.
In their oppositions to the motion to intervene, nei-
ther the plaintiff nor the defendants contested Baotou’s
assertion that it has a contractual right to the use and
occupancy payments by virtue of Patriot Bank’s assign-
ment of the loan documents, including the assignment
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of leases and rents. Moreover, neither party to the
underlying action has participated in the present appeal
to raise such an argument. In short, not only does Bao-
tou have a direct right to the subject matter of the
postjudgment litigation at issue, that right is also a sub-
stantial one, as reflected in the amount of the accumu-
lated use and occupancy payments at issue: $336,000.
Moreover, Baotou’s interest would likely be impaired
by any disposition in which it was not permitted to
participate. Section 47a-35b expressly provides that the
court’s distribution of the accumulated use and occu-
pancy payments ‘‘shall be conclusive,’’ suggesting that
Baotou’s exclusion from the distribution proceeding
could prove fatal, or at the least impair, any later
attempt to assert a right to the distributed funds. Even
if it were able to later establish in the foreclosure action
that it is entitled under the loan documents to any
distribution made to the plaintiff, it is uncertain, given
the plaintiff’s alleged default on the mortgage debt, that
Baotou would be able to recover the distributed funds.
The fact that Baotou possibly could vindicate its rights
to the use and occupancy payments by instituting
another lawsuit is not pertinent to whether it should
be permitted to intervene now given that our ‘‘rules of
intervention should be liberally construed, in order to
avoid multiplicity of suits and settle all related contro-
versies in one action.’’ (Internal quotation marks omit-
ted.) Schaghticoke Tribal Nation v. Harrison, 264
Conn. 829, 838–39, 826 A.2d 1102 (2003). On balance,
we conclude that the second and third elements of the
four part test are met.
Finally, the fourth element of the test is whether the
interest of the proposed intervenor can be represented
adequately by any existing party to the litigation. ‘‘The
burden for establishing inadequate representation of
similar interests is minimal. Indeed, the United States
Supreme Court has acknowledged that one successfully
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establishes inadequate representation if the applicant
shows that representation of his interest may be inade-
quate . . . . The particular circumstances of each case
will dictate whether the absentee has an interest differ-
ent from that of an existing party, and doubts should
be resolved in favor of intervention.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
60 Conn. App. 134, 149–50, 758 A.2d 916 (2000). ‘‘[A]
presumption of inadequacy arises when an absentee
must rely on his opponent or one whose interests are
adverse to his.’’ Id., 149. Baotou’s interest in the use
and occupancy payments is clearly adverse to both
the plaintiff and the defendants. A distribution of the
accumulated funds to either the plaintiff or the defen-
dants obviously would deprive Baotou of the funds
and, as discussed, likely would give rise to further legal
action. Accordingly, the existing parties would not ade-
quately protect Baotou’s interest in obtaining the use
and occupancy payments. Thus, the fourth element is
satisfied.
The trial court, in denying the motion to intervene,
did not engage in an analysis utilizing the appropriate
four factor test. Instead, the primary reason given by
the court for not permitting Baotou to intervene in the
postjudgment proceedings was Baotou’s lack of any
present possessory interest in the property that was
the subject of the eviction action. This was far too
narrow of a lens, or perhaps the wrong lens entirely,
through which to view Baotou’s request for interven-
tion. As a party with a clear and undisputed interest
in the distribution of the accrued use and occupancy
payments, Baotou had an absolute right to intervene.
‘‘The underlying purpose of a § 47a-35b proceeding
is to place some obligation on a nonpaying tenant to
provide a property owner with surety against further
financial losses while the summary process judgment
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is being considered on appeal. . . . A proceeding to
order the distribution of funds held by the court in a
summary process action under § 47a-35b is properly
limited to those claims related to the use and occupancy
of the premises during the pendency of the appeal.’’
(Citation omitted; internal quotation marks omitted.)
Rock Rimmon Grange #142, Inc. v. Bible Speaks Minis-
tries, Inc., 112 Conn. App. 1, 7, 961 A.2d 1012 (2009).
‘‘[T]he evident purpose of the statute was to authorize
the court to settle equitably the many disputes which
may arise during the pendency of the proceeding not
necessarily related to the merits of the action.’’ (Empha-
sis added; internal quotation marks omitted.) Id., 6. In
other words, a § 47a-35b hearing is unrelated to the
determination of the possessory interests in the prop-
erty in a summary process action. Rather, in the present
case, it involves a dispute that falls outside of the merits
of the eviction action, one that is between primarily
the plaintiff and Baotou over who should receive the
benefit of the use and occupancy payments made by
the defendants during their unsuccessful appeal.
In MFS Associates, Inc. v. Autospa Realty Corp., 19
Conn. App. 32, 560 A.2d 484 (1989), this court construed
an analogous statute, General Statutes § 47a-26f,14
which governs the distribution of use and occupancy
payments paid into court during the pendency of an
eviction action rather than following an appeal in lieu
of bond. Id., 33 n.1, 35; see also Rock Rimmon Grange
#142, Inc. v. Bible Speaks Ministries, Inc., supra, 112
Conn. App. 5 (§§ 47a-26f and 47a-35b are ‘‘nearly identi-
cal in language and purpose’’). In MFS Associates, Inc.,
14
General Statutes § 47a-26f provides: ‘‘After entry of final judgment, the
court shall hold a hearing to determine the amount due each party from
the accrued payments for such use and occupancy and order distribution
in accordance with its determination. Such determination shall be based
upon the respective claims of the parties arising during the pendency of
the proceedings after the date of the order for payments and shall be conclu-
sive of such claims only to the extent of the total amount distributed.’’
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after the trial court had dismissed the summary process
action for lack of subject matter jurisdiction, the defen-
dant tenant moved for disbursement of the use and
occupancy payments that it had paid into court during
the pendency of the action. MFS Associates, Inc. v.
Autospa Realty Corp., supra, 34. The trial court granted
the motion, and the plaintiff landlord appealed. Id. This
court held that the trial court improperly had ordered
the funds disbursed to the defendant simply because
the action had been dismissed for lack of subject matter
jurisdiction. Id., 35. This court further concluded that
a proceeding for disbursement of use and occupancy
funds paid into court by a tenant during the pendency
of a summary process action ‘‘is a statutory proceeding
separate and distinct from the summary process
action that it follows.’’ (Emphasis added.) Id.
Given the nearly identical language and purpose of
§ 47a-35b, we are convinced that the statutorily pre-
scribed hearing to distribute use and occupancy pay-
ments made during the pendency of an appeal from a
judgment of possession in a summary process action
is also a separate and distinct proceeding from the
underlying eviction action. Accordingly, Baotou’s pos-
sessory interest in the property was not a proper consid-
eration in determining whether to grant the motion to
intervene; the relevant question was whether Baotou
had a sufficient interest in the separate and distinct
distribution proceeding. Baotou’s interest is apparent
on this record, and, therefore, the court improperly
denied its motion to intervene as a matter of right.
The judgment is reversed and the case is remanded
with direction to grant Baotou’s motion to intervene and
for further proceedings in accordance with § 47a-35b.
In this opinion the other judges concurred.