John S. Kaminski v. James Wardwell (2013)

ORDER

ORDER REGARDING 08/09/2013 106.00 MOTION TO STRIKE

The foregoing, having been considered by the Court, is hereby:

ORDER:

“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).   The court takes “the facts to be those alleged in the [complaint] ․ and ․ construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).   Thus, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).  “[T]he complaint is required only to fairly put the defendant on notice of the claims against him ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.”  (Citation omitted;  internal quotation marks omitted.)  Montanaro v. Gorelick, 73 Conn.App. 319, 323–24, 807 A.2d 1083 (2002).  “Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).

At this procedural juncture, plaintiff's claims survive.   He has not pled his claim as a § 1983 action in spite of defendant's attempt to treat it as such.   The limitations issues are not properly before the court, although this ruling is made without prejudice to their reassertion in a motion for summary judgment.  “A claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  Forbes v. Ballaro, 31 Conn.App. 235, 237–38 (1993).

Judicial Notice (JDNO) was sent regarding this order.

427017

Judge:  JAMES WILSON ABRAMS

Abrams, James W., J.