City of Stamford v. Victor P. Deyulio et al. (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE

In the present case the defendant filed an appeal and an application for reassessment of damages arising out of a condemnation proceeding initiated by the City of Stamford.   The plaintiff filed a motion to strike Paragraph 6 of Count One of the defendant's appeal and application which alleges “the property owners are further damaged by the necessity to relocate their successful going business to a location with a replacement facility which must be constructed with federal and state statutes and regulations and meat processing facilities.”   The plaintiff argues in support of its motion to strike that relocation costs and expenses are not compensable as a matter of law as part of the award for just compensation for the taking of the defendant's real property by the plaintiff.   The defendant argues that relocation expenses can be an element that the court considers in determining just compensation.

“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.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003) (citations omitted).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Violano v. Fernadez, 280 Conn. 310, 318 (2006) (citations omitted).

[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably, under the present rules a motion to strike may properly lie with respect to any individual paragraph in a count ․ However, the weight of authority in the superior court is that the motion does not lie, except possibly where a subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”   Jaskowski v. Ross, Superior Court, judicial district of New London, Dk. No. CV06 5000425 (March 9, 2011, Cosgrove, J.).

The function of a trial court in condemnation cases is to determine as nearly as possible the fair equivalent in money for the property taken.   Although the market value of the taken property is ordinarily the most appropriate measure of fair compensation, our courts have long held that other measures may be appropriate when fair market value measure of damages does not fully compensate the owner.  Alemany v. Commissioner of Transportation, 215 Conn. 437, 444 (1990).   In determining what just compensation is, the court will take an equitable view rather than a strictly legal or technical one.  Alemany, supra;  Luca v. Ives, 150 Conn. 521, 530 (1963).   Under certain circumstances, the cost of moving specialized or heavy equipment may be a factor that the trial court considers in determining appropriate compensation for the condemnee.  Alemany, supra, 447.   Fn.5. Paragraph Six of the defendant's application does not set forth a separate cause of action, but sets forth a series of facts that may under certain circumstances be appropriate for the court to consider in determining the just compensation to which the condemnee is entitled.

Accordingly, the motion to strike is denied.¹

GENUARIO, J.

FOOTNOTES

FN1. Nothing in this opinion should be construed as a determination of the court, that the condemnee in this action is entitled to moving or relocation expenses, or that those expenses should be considered in determining market value or just compensation.   That determination will be made during the trial depending upon all of the facts and circumstances..  FN1. Nothing in this opinion should be construed as a determination of the court, that the condemnee in this action is entitled to moving or relocation expenses, or that those expenses should be considered in determining market value or just compensation.   That determination will be made during the trial depending upon all of the facts and circumstances.

Genuario, Robert L., J.