Ofir Sperling et al. v. Sylvan Knoll Section I, Inc. et al. (2013)

Memorandum of Decision

The plaintiffs in this action are the owners of a co-operative apartment (propriety lease and shares) located at 405 Sylvan Knoll Road in Stamford.   The defendants are Sylvan Knoll Section 1, Inc., the cooperative association, (“Sylvan Knoll”) and members of its board of directors.   The dispute arises out the plaintiffs' construction of a small wooden deck in the common area adjacent to their unit.   Sylvan Knoll claimed that the deck had been constructed without first obtaining its written approval and acted to impose fines on the plaintiffs.   The plaintiffs then filed this action.   In their complaint the plaintiffs allege seven separate counts each of which is asserted against all the defendants.

On March 6, 2013 the defendants filed a revised motion to strike the second, third, fourth, fifth, sixth and seventh counts of the complaint on the various grounds.   The plaintiffs filed an objection to the motion to strike on April 11, 2013.   The court heard the matter on short calendar on May 13, 2013.

DISCUSSION

“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 (2003).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

STATUTORY VIOLATIONS—SECOND AND THIRD COUNTS

In their motion to strike the second and third counts, the defendants claim that General Statutes §§ 47–278 and 47–244(h) do not authorize punitive damages.   On that basis the defendants seek to strike not only the requests for relief seeking punitive damages but also to strike the underlying counts.   In the memorandum filed in support of their motion to strike the defendants urge that the second and third counts should both stricken because they are “repetitive and redundant with the first count.”

Practice Book § 10–41 requires that “Each motion to strike raising of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   Repetition and redundancy are not enumerated in the Practice Book as a basis for claims of legal insufficiency.  Section 10–35(2) of the Practice Book envisions that repetitious pleadings be addressed through a request to revise.¹

The court finds that the motion to strike addressed to the second and third counts have merit only in so far as they seek to strike the claims for punitive damages.   The plaintiffs' second count is based on a claim of violations of General Statutes §§ 47–278.   In relevant part, that statute provides:

(a) A declarant, association, unit owner or any other person subject to this chapter may bring an action to enforce a right granted or obligation imposed by this chapter, the declaration or the bylaws.   The court may award reasonable attorneys fees and costs.

The plaintiffs' third count is founded on a claim that the defendants breached a statutory duty under General Statutes § 47–244(h) not to “be arbitrary or capricious in taking enforcement action.”   The statute provides:

(h) The executive board's decision under subsection (g) of this section not to take enforcement action under one set of circumstances does not prevent the executive board from taking enforcement action under another set of circumstances, except that the executive board may not be arbitrary or capricious in taking enforcement action.

General Statutes § 47–212(a) expressly provides that “consequential, special or punitive damages may not be awarded except as expressly provided in this chapter or by other rule of law.”   The court agrees with the defendants that the plaintiffs have failed to plead sufficient facts to entitle them to punitive damages under either the second count or the third count.   The court grants the motion to strike the requests for relief seeking punitive damages under those counts, but denies the motion to strike the second and third counts.

STATUTORY VIOLATION—FOURTH COUNT

In their motion to strike the fourth count, the defendants claim that General Statutes § 47–211 does not authorize any causes of action and that, therefore, the fourth count fails to state a cause of action.   In their fourth count the plaintiff's claim that § 47–211 imposes an obligation of good faith on the defendants.   That statute provides:  “Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.”

In the memorandum filed in support of their motion to strike the fourth count the defendants rely on the case of Collins v. Townhouse Eight-eight Foundation, Inc. Superior Court judicial district of Hartford at New Britain, Docket No. CV 89 0434506 (January 3, 1991, Aronson, J.).   The plaintiff in that case sued the defendant for personal injuries she sustained as the result of a slip and fall on a public sidewalk abutting the defendant's property.   The plaintiff alleged that the defendant had allowed mud and other debris from its property to wash onto the sidewalk causing it to become slippery.   In her fourth count the plaintiff alleged that the defendant had violated its bylaws which required it to keep its property free of any condition which would constitute a nuisance.   The court granted the motion to strike the fourth count holding that only persons who are subject to the Common Interest Ownership Act, General Statutes § 42–200 et seq.  (“CIOA”) were entitled to its protections.   Since the plaintiff was merely a member of the general public she was not a person covered by the act.

In this case the plaintiffs are unit owners whose rights are addressed and covered under CIOA. The motion to strike the fourth count cannot be granted on the grounds stated by the defendants in their motion.²

NUISANCE—FIFTH COUNT

In their motion to strike the fifth count, the defendants claim that the allegations of that count do not allege sufficient facts to constitute a nuisance.   In their fifth count the plaintiffs allege that the defendants' attempts to fine the plaintiff and to remove the patio they erected constitute an interference with their property rights.   In their memorandum filed in support of the motion to strike the fifth count, the defendants base their legal arguments on the absence of the elements of a cause of action founded on public nuisance.³  It is clear from the allegations of the fifth count that the plaintiffs are attempting to assert a cause of action based on private nuisance and not one based on public nuisance.   The court finds the defendants' arguments and authorities to be beside the point and unhelpful.

However, since the motion to strike claims that the fifth count fails to state a cause of action, the court will examine the allegations of that count to determine whether a cause of action for private nuisance is adequately pled.   In order to sustain a cause of action based on private nuisance the plaintiffs must prove:  1) that they had an ownership interest in the property;  2) that the condition complained of had a natural tendency to create a continuing danger;  3) that the defendants use of land was unreasonable or unlawful;  4) that the condition was the proximate cause of their injuries;  5) that the defendants exercised control over the property that is the source of the nuisance;  and 6) that the defendants intended to bring about the condition that was a nuisance.  New London Savings Bank v. Tucciarone, 48 Conn.App. 89, 98–99 (1998).

It is clear that from the allegations of the fifth count that the plaintiffs are not asserting a claim arising from any dangerous condition created by the defendant on property controlled by the defendants.   In fact, the plaintiffs' claims arise out of a condition which they created on property controlled by the defendant cooperative association and the members of its board.   The plaintiffs may have valid causes of action arising out of the defendants' conduct, but they have not asserted a valid claim based on nuisance.   The motion to strike the plaintiffs' fifth count is granted.

CUTPA—SIXTH COUNT

In their motion to strike the sixth count, the defendants claim that plaintiff cannot assert claims of violations of the Connecticut Unfair Trade Practices Act (“CUTPA”), General Statutes § 42–110a et seq. because the claims against the defendants do not arise out of “trade or commerce.”   The defendants rely on Raflalowski v. Old Country Road, Inc., 45 Conn.Sup. 341, 354 (1997), aff'd per curiam, 245 Conn. 504 (1998).   In that case, the court (Levine, J.) granted a motion to strike a count alleging CUTPA violations in a suit brought by a purchaser of a condominium unit against the declarant/developer.   The court held that claims of mismanagement against the executive board of the condominium and its members do not arise out of a “trade or practice” and accordingly could not serve as a basis for a CUTPA claim.

In their opposition to the motion to strike the sixth count the plaintiffs recite the basic elements of a CUTPA claim but fail to address the issue of whether their claims arise out of trade or commerce.   The court finds that the allegations of the sixth count are insufficient to state a CUTPA claim.   Accordingly, the court grants the motion to strike that count.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS—SEVENTH COUNT

In their motion to strike the seventh count, the defendants claim that the allegations of that count do not sufficiently allege a cause of action for intentional infliction of emotional distress because the count fails to allege “extreme and outrageous” conduct.⁴  In their opposition to the motion to strike the seventh count the plaintiffs assert that plaintiff Bar Sperling had an existing medical condition which was known to the defendants and that such knowledge escalated the culpability of the defendants' conduct to reach the level required to maintain a claim for intentional infliction of emotional distress.   The court disagrees.

“To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements:  (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)   Davis v. Davis, 112 Conn.App. 56, 65 (2009).

“Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind ․ Thus, [i]t is the intent to cause injury that is the gravamen of the tort.”  (Citations omitted;  internal quotation marks omitted.)  Bell v. Board of Education, 55 Conn.App. 400, 409 (1999).

The Restatement (Second) of Torts further describes conduct required to support a claim of intentional infliction of emotional distress as follows:  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’  “ I Restatement (Second), Torts § 46, comment (d), p. 73 (1965).

The court finds that the allegations of the seventh count fail to allege extreme and outrageous conduct of the defendants sufficient to support a cause of action for intentional infliction of emotional distress.   Accordingly, the court grants the motion to strike the seventh count of the plaintiffs' complaint.

CONCLUSION

The defendants' motion to strike the claims for punitive damages from the requests for relief under the second count is granted.   The motion to strike the second, third and fourth counts is denied.   The motion to strike the fifth, sixth and seventh counts is granted.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. The defendants' motion to strike the second and third counts is also fatally defective in that the grounds of repetition and redundancy are not stated in the motion to strike, but rather raised only in the memorandum filed in support of the motion.  Stuart v. Freiberg, 102 Conn.App 857 (2007)..  FN1. The defendants' motion to strike the second and third counts is also fatally defective in that the grounds of repetition and redundancy are not stated in the motion to strike, but rather raised only in the memorandum filed in support of the motion.  Stuart v. Freiberg, 102 Conn.App 857 (2007).

FN2. In the memorandum filed in support of their motion to strike, the defendants also claim that the fourth count is redundant and repetitious.   As noted above 1) the court cannot consider grounds for striking a count not set forth in the motion to strike, 2) the issue should have been addressed in a request to revise..  FN2. In the memorandum filed in support of their motion to strike, the defendants also claim that the fourth count is redundant and repetitious.   As noted above 1) the court cannot consider grounds for striking a count not set forth in the motion to strike, 2) the issue should have been addressed in a request to revise.

FN3. In the memorandum of law filed in opposition to the motion to strike, the plaintiffs do not address the merits of their fifth count..  FN3. In the memorandum of law filed in opposition to the motion to strike, the plaintiffs do not address the merits of their fifth count.

FN4. In their memorandum of law filed in support of their motion to strike the seventh count, the defendants assert an additional ground for legal insufficiency (there is no case law allowing a claim for intentional infliction of emotional distress where the only damages are to property).   Because the defendants failed to include this claim in the body of the motion to strike, the court will ignore this additional claim.  Stuart v. Freiberg, supra..  FN4. In their memorandum of law filed in support of their motion to strike the seventh count, the defendants assert an additional ground for legal insufficiency (there is no case law allowing a claim for intentional infliction of emotional distress where the only damages are to property).   Because the defendants failed to include this claim in the body of the motion to strike, the court will ignore this additional claim.  Stuart v. Freiberg, supra.

Tobin, David R., J.T.R.