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Mas v. Perry - 2007 Conn. Super. LEXIS 463 (Super. Ct. Feb. 13, 2007)

Rule:

Whenever any party wishes to contest the legal sufficiency of any answer to any complaint, counterclaim, or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof. Conn. Gen. Prac. Book, R. Super. Ct. § 10-39(a). Conn. Gen. Prac. Book, R. Super. Ct. § 10-41 provides that each motion to strike shall separately set forth each claim of insufficiency and shall distinctly specify the reason or reasons for each claimed insufficiency. In ruling on a motion to strike special defenses, a trial court must take the facts to be those alleged in the special defenses and construe the defenses in the manner most favorable to sustaining their legal sufficiency. A speaking motion to strike, one imparting facts outside the pleadings, will not be granted.

Facts:

Plaintiff Vincent Mas filed a two-count complaint in Connecticut state court against defendants Benjamin and Christen Perry in connection with injuries Mas allegedly sustained when he fell on premises owned by the Perrys and leased by them to Mas. Specifically, Perry claimed that the Perrys changed Mas' access to his apartment by making the front entrance inaccessible, thereby, forcing him to use the rear entrance. While ascending the rear entrance steps, he fell and sustained injuries. In count one, Mas claimed the Perrys were negligent and in count two, he alleged the Perrys violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The Perrys filed an answer along with two special defenses. Mas then filed a motion to strike the Perrys' second special defense, along with a memorandum in support and two documents appended thereto, arguing that the second special defense was insufficient as a matter of law. The Perrys opposed the motion.

Issue:

Should the court grant Mas' motion to strike the Perrys second special defense on the ground that it was insufficient as a matter of law?

Answer:

No

Conclusion:

The trial court denied the motion to strike the second special defense. The court observed that Mas' motion was fatally defective because it simply relied on reasons set forth in the memorandum, rather than specifying in the motion itself the reasons why the second special defense was defective as required by Conn. Gen. Stat. § 10-41. However, because the Perrys did not raise this defect, the court considered the argument waived. As such, the court analyzed the motion in the form presented and ruled that, as presented, Mas' memorandum in support constituted a speaking motion and, therefore, could not be granted. The memorandum imparted facts outside the pleadings by premising argument on the content of appended documents. Since the court was limited to a consideration of the pleadings and motions imparting facts outside of those pleadings could not be granted, Mas' motion to strike was denied.

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