Opinion
No. CV 08 5003319S
April 20, 2009
MEMORANDUM OF DECISION
The defendant Pierce Kearney in the above entitled action has moved and argued for the discharge of a particular Lis Pendens pursuant to C.G.S. 52-325d. The dispute relates to two parcels of real property belonging to the defendant and located in the Town of Sharon, Connecticut. The thrust of the argument centers around whether or not the court can find probable cause to sustain certain counts within the plaintiff's complaint relating to a fraudulent transfer involving at least one of the subject properties.
The plaintiff, at time of short calendar argument, released the Lis Pendens from the second parcel located at 55 Gay Street, Sharon. Therefore, the court's consideration focuses on the parcel at 1 Hospital Hill Road in Sharon.
The plaintiff's complaint is broad reaching with multiple counts to include a fraudulent conveyance allegation that could conceivably affect the Hospital Hill Road property. The alleged tortuous conduct involved the defendant's father transferring his interest through the defendant and ultimately to the defendant's wife jointly in the said parcel. Based on those bald allegations, the court can conclude that there is a basis for finding probable cause to believe that there may be a fraudulent transfer to the defendant in order to avoid satisfaction of the plaintiff's claim. The intent behind the discharge statute relating to lis pendens has been addressed in the cases of Corsino v. Telesca, 32 Conn.App. 627, 632 (1993) and Cadel Company v. Gabel, 69 Conn.App. 279, 285 (2002). Those cases talk about the court's determination of probable cause and how it is a flexible concept and does not demand "that a belief be correct but more likely true than false."
The defendant has proceeded under the separate statute C.G.S. § 52-523d for discharge of an invalid notice of lis pendens, although there was argument from the parties concerning whether or not there was probable cause to support the underlying claim of fraudulent transfer. The plaintiff has alleged that the subject property and the relief requested concerning that property would affect the title to and/or interest in the real property. Corsino, supra, p. 635.
The court finds that the said parcel at 1 Hospital Hill Road may be subject to a fraudulent transfer claim pursuant to C.G.S. § 52-552e et seq. and therefore the lis pendens would relate to an interest in real property. Although the defendant cited Section 325d of the statute, the argument seems to focus on whether there is probable cause or not to sustain a fraudulent transfer allegation. The court finds that the Eleventh (11th) Count appears to be properly and credibly alleged and that the defendant has not sustained its burden under the subject statutes and therefore the underlying elements for a valid lis pendens do exist and the lis pendens is intended to affect real property and therefore the motion for discharge of said lis pendens as it relates to 1 Hospital Hill Road is hereby denied. No costs or fees are awarded to either party.