VJ III LLC v. LLC (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE

This is a summary process action concerning commercial property.   On December 16, 2010, the court, Oliver, J., sustained objections to the defendants' request to revise.   A pleading was due from the defendants on December 21, 2010.   On December 28, 2010, a motion for default for failure to plead was filed by the plaintiff.   On December 30, 2010, the defendant John Doe filed a motion to strike the second count of the plaintiff's complaint, directed to him.

The motion to strike is based on two grounds.   This defendant argues that the plaintiff served a notice to quit upon him for reasons of non-payment of rent and termination of the right to occupy;  however, the complaint alleges the defendant never had the right to occupy.   The defendant also argues the plaintiff did not allege in its complaint that, as to John Doe, the plaintiff does not know the name of the occupant or occupants as required by General Statutes § 47a–23a.

The plaintiff argues that the defendant is procedurally precluded from filing a motion to strike as it is untimely.

LEGAL STANDARD:

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

Pursuant to Practice Book Section 10–39(a)(1), when a party seeks to contest the “legal sufficiency of the allegations of any complaint, counterclaim, or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”

A motion to strike admits all well-pleaded facts.  Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

DISCUSSION:

I

The plaintiff's argument that the defendant is precluded from filing a motion to strike is not availing. § 17–32(b) of the Practice Book states that the defendant who is in default may (only) file an answer if a judgment has not entered and the default will be set aside.   Here, the defendant had not been defaulted before filing the motion to strike, as the clerk had not yet acted on the motion for default.   He is not precluded from filing his motion to strike and, therefore, the plaintiff's objection to it on procedural grounds is overruled.

II

A notice to quit possession was served upon the defendants which listed grounds of nonpayment of rent pursuant to General Statutes § 47a–23(a)(1)(E) and termination of the right to occupy pursuant to General Statutes § 47a–23(a)(3).   In the Second Count of the subsequent complaint, the plaintiff alleges this defendant “has no right to have possession of the Premises.”   The allegations contained within a summary process complaint may not be at variance with the reasons for eviction given in the notice to quit.   The court finds that the allegations in the complaint are not contrary to the ground stated in the notice to quit.   They are sufficiently pled to give notice of the reason for eviction to this defendant.

III

General Statutes § 47a–23a states, inter alia, “In any case in which service is to be made upon an occupant or occupants identified by alias, the complaint shall contain an allegation that the plaintiff does not know the name of such occupant or occupants.   The plaintiff did not state in the Second Count of its complaint that it does not know the name of this defendant, identified as “John Doe.”

Summary process actions are a creature of statute and must be strictly construed.  Jo–Mark Sand & Gravel Co. v. Pantenella, 139 Conn. 598, 600–01, 96 A.2d 217 (1953).   Summary process statutes that grant a landlord rights in derogation of the common law have been “ ‘narrowly construed and strictly followed.’  “ Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 615 (1993);  Jefferson Garden Associates v. Greene, 202 Conn. 128, 143, 520 A.2d 173 (1987).   The plaintiff has failed to comply with the requirements of General Statutes § 47a–23a.   On this basis, the motion to strike the Second Count is granted.

ORDER:

The defendant John Doe's motion to strike the Second Count is granted.

Robert E. Young, Judge

Young, Robert E., J.