Bette Zollshan v. Ronald Manzi (2013)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO STRIKE (# 105)

NATURE OF THE PROCEEDINGS

The defendant moves to strike counts two and three of the complaint for failure to state claims upon which relief can be granted.   Defendant claims that because the plaintiff was not a tenant of the subject property, she cannot assert claims of negligence per se for violations of the Old Saybrook Town Code (§ 166–6) and Connecticut General Statutes § 47a–7.   The plaintiff filed an objection along with a memorandum.

The court heard argument on the motion in December 16, 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, 815 A.2d 1188 (2003).   In ruling on a motion to strike, 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).  “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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [The court is] limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 368 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (the court cannot resort to information outside of the complaint in ruling on a motion to strike).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

It is undisputed that the complaint does not allege that the plaintiff and defendant were involved in a landlord/tenant relationship at the time of the alleged occurrence.   Count three of the complaint alleges that the defendant's conduct violated Connecticut General Statutes § 47a–7(2), (3) and (4).   A review of the relevant case law indicates that the nature of the code violations Connecticut General Statutes § 47a–7 is concerned with relate specifically to the habitability of property for occupants and directly implicate the landlord/tenant relationship.   See e.g. Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 650–51, 546 A.2d 805 (1988), Housing Authority v. Oleson, 31 Conn.App. 359, 362–63;  624 A.2d 920 (1993), Tucker v. Lopez, 38 Conn.Sup. 67, 457 A.2d 666 (1982).   The plaintiff's status as business invitee is a distinct and separate status from that of a tenant.   The court is not persuaded that the authority submitted by the plaintiff in opposition to the motion to strike the third count holds that said count states a claim upon which relief can be granted.   See also Bray v. Bray, 51 Conn.Sup. 133, 978 A.2d 582 (2009);  Peck v. Von Staats, judicial district of Middlesex, Housing Session at Middletown, docket number MMV–17757 (Nov. 22, 2010, Burke, J.).   Therefore, the motion to strike the third count of the complaint is granted.

With regard to the second count, the court concludes that the plain language of the Old Saybrook Town Code does not limit it's applicability to solely those individuals in a landlord/tenant relationship.   Section 166–2 of the Code provides the following in relevant part:

It is hereby declared that the purpose of this code is to protect, preserve, and promote the physical and mental health and social well-being of the people, to prevent and control the incidence of communicable diseases, to reduce environmental hazards to health, to regulate privately and publicly owned rental residential premises for the purpose of maintaining adequate sanitation and public health, and to protect the safety of the people and to promote the general welfare by legislation which shall be applicable to all such premises now in existence or hereafter constructed.   It is hereby further declared that the purpose of this code is to insure that the quality of such housing is adequate for protection of public health, safety and general welfare, including establishment of minimum standards for basic equipment and facilities for light, ventilation, and thermal conditions, for safety from fire and accidents, for the use and location and amount of space for human occupancy, and for an adequate level of maintenance;  determination of the responsibilities of owners, operators and occupants of rental dwellings;  and provision for administration and enforcement thereof.

The Code does not specify that it is regulating solely the well-being of tenants.   In fact, it sets forth a much broader purpose.   The language employed indicates that its purpose is to protect, preserve and promote the well-being of “the people.”   The legislature has stated that municipalities are able to, inter alia, “[m]ake rules relating to the maintenance of safe and sanitary housing” in order to “[r]egulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality ․” (Emphasis added.)  General Statutes § 7–148(c)(7)(ii).   See also State v. Schaffel, 4 Conn.Cir.Ct. 234, 238 (Cir.Ct.App.Div.1966) (“If any reasonable ground to uphold the ordinance exists, especially where, as here, the apparent aim of the ordinance is to serve the general welfare, courts will assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose.”) § 166–6 of the code regulates not only every “dwelling unit”, but also all “public and common areas.”   This language demonstrates that the ordinance is meant to protect more than just tenants living in the rental property.   The ordinance specifically mentions “public ․ areas.”  “Public areas” undoubtedly include areas not restricted to use by tenants only.   Therefore, the motion to strike the second count is denied.

Vitale, J.

Vitale, Elpedio N., J.