Wayne Kulkin et al. v. Pieter Engel et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE SPECIAL DEFENSES AND COUNTERCLAIMS (# 122)

I. BACKGROUND

This is a civil action between neighboring residential property owners.   According to the amended complaint ¹ plaintiffs' residence is located in a four-acre residential zone and the plaintiffs' property includes portions of an access way which in total has a length of approximately 1,400 feet.   Other residential properties gain access from the public street via the access way including the residential property owned by the defendants.   The plaintiffs hold fee simple title to portions of the access way and the defendants do not.   The defendants' deed grants them “a right of way to pass and repass and to install, operate and maintain electric power and telephone lines in said 50 foot strip.”   In or about 2006 the defendants began construction of an approximately 7,000 square foot residence on their property and altered the topography, removed extensive vegetation leading down to the access way and committed numerous trespasses by constructing, on the plaintiffs' property, stone walls, stone pillars, stone head wall, a stone encasement for a drainpipe and other structures.   The plaintiffs further allege that the defendants changed the drainage from their property, changed the volume of flow of surface and ground water on and from their property, channeled, diverted and discharged storm waters and other materials from their property.   The complaint also alleges that as a result of the defendants' actions increased volume of ground and surface waters flow from the defendants' property to the plaintiff's property causing damage to the plaintiffs' property.   The plaintiffs' amended complaint includes additional allegations which set forth their theories of recovery in the following seven counts:  First count—common-law trespass, Second—private absolute nuisance, Third count—private negligent nuisance, Fourth count—negligence, Fifth count—tortious diversion of surface waters, Sixth count—Violation of Inland Wetlands and Watercourses Act (IWWA), Seventh count—Violation of Connecticut Environmental Protection Act (CEPA).   The defendants filed an answer and special defenses as well as a counterclaim.   The revised special defenses dated August 10, 2011 sets forth fifteen special defenses.   Each special defense is applicable to one or more counts of the complaint.   The plaintiffs in turn filed this motion to strike dated October 3, 2011 which sought to strike multiple special defenses.   As a result of discussions between the parties many of the issues raised by the plaintiffs' motion to strike had been resolved either by withdrawal of certain special defenses by the defendants or a representation that the motion to strike will not be pursued with regard to certain special defenses by the plaintiffs.   The court appreciates the endeavors and agreements of counsel to narrow the issues in what appears to be a very intensely litigated adversary proceeding.

What remains for the court to decide with regard to the plaintiffs' motion to strike the special defenses is as follows:  the motion to strike the eighth special defense entitled “comparative recklessness/assumption of the risk” as to counts one, two, five, six and seven;  the motion to strike the ninth special defense entitled “failure to mitigate” as to counts six and seven;  and the motion to strike the twelfth special defense entitled “privilege” as to counts two, three, four and five.

II THE MOTION TO STRIKE

“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 could be granted.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “[A] plaintiff can [move to strike] a special defense ․” Nowak v. Nowak, 175 Conn. 112 (1978).   It is black letter law that in ruling upon a motion to strike the court must construe pleadings in the manner most favorable to the nonmoving party and, if the facts provable under the pleadings support a defense, the motion to strike must fail.  Rowe v. Godow, 209 Conn. 273, 278 (1988) “a motion to strike admits all facts well pleaded;  it does not admit legal conclusion or the truth or accuracy of opinions stated in the pleadings.”  Faulkner v. United Technologies Corp., 240 Conn. 576 (1997)

III COMPARATIVE NEGLIGENCE/ASSUMPTION OF THE RISK

In their eighth special defense the defendants allege

If the plaintiff suffered injury from the defendants' alleged conduct, plaintiffs assume the risk of such injury and/or caused said injury by way of their own comparative recklessness in one or more of the following ways:  (a) they knew or should have known that improvements were being made and/or would be made to the access way and/or to 81 Benedict Hill Road by the defendants and the plaintiff, with deliberate or reckless disregard of the anticipated and/or ongoing efforts of the defendants to improve said areas, failed to take timely steps to prevent and/or discontinue said improvements;  (b) by causing the improvements to the access way to persist by intentional refusing the defendants access to said area for the purpose of restoring the area, thereby acting with deliberate or reckless disregard of the risk of allowing the alleged wrongful conditions to continue.

A. COUNT ONE—COMMON–LAW TRESPASS

The first count of the amended complaint alleges that the defendants have intentionally trespassed on the plaintiffs' property by intentionally diverting water and other materials onto the plaintiffs' property and by intentionally constructing certain structures upon the plaintiffs' property.   Neither comparative recklessness nor assumption of the risk has been established in Connecticut as a defense to an intentional tort such as trespass.   In fact it has been expressively rejected as a defense to intentional torts.   See e.g. Agnes v. Grimm, 2001 WL 837920 (June 29, 2001 Rubinow, J.).   Moreover these defenses have been held to be inapplicable to claims arising out of intentional torts in most other jurisdictions as well.   See Janelsins v. Button, 648 A.2d 1039, 1045 (Md.App.1994).   Accordingly the court will strike the eighth special defense as to the first count.

B. COUNT TWO—PRIVATE ABSOLUTE NUISANCE

With regard to the second count sounding in absolute nuisance the court comes to a different conclusion.   The plaintiffs in seeking to strike this defense as to absolute nuisance rely on the well reasoned superior court cases of Donahue v. S.J. Fish and Sons, Inc., 1995 WL 562216 (September 18, 1995 Blue, J.) [15 Conn. L. Rptr. 569], and Lopez v. CCRC d/b/a Nutmeg Recycling, LLC, 2006 WL 329868 (January 27, 2006 Keller, J.) [40 Conn. L. Rptr. 650], but those cases are distinguishable on their facts as they arise out of employer-employee relationships and landlord-tenant relationships.   In Donahue the court stated “it would be anomalous to apply the defense [of assumption of the risk] to causes of actions outside the field of negligence in the absence of compelling authority or convincing argument.”   However in Connecticut there is appellate authority approving the defense of assumption of the risk to claims arising out of absolute nuisance.   See Beckwith v. Stratford, 129 Conn. 506, 514 (1942);  Murphy v. Ossala, 124 Conn. 366 (1938).   To be sure these are older cases but the plaintiff has pointed to no Connecticut appellate authority which has indicated appellate retrenchment of the principles stated therein.   Moreover, much of the discussion about the elimination of assumption of the risk as a defense in certain types of actions arises out of the legislative elimination of assumption of the risk as a defense in negligent actions pursuant to C.G.S. section 52–572h(1).   But that statute did not simply eliminate assumption of the risk but eliminated and replaced it with the legislatively preferred defense of comparative negligence.   The court recognizes that absolute nuisance does require as one of its elements an intention to act (though not necessarily an intention to harm or damage), Pesty v. Cushman, 259 Conn. 345, 358 (2002), and that therefore the court's decision to deny the motion to strike with regard to count two could be viewed as somewhat inconsistent with its decision to strike the defense with regard to count one sounding in intentional trespass.   However the simple answer is that the Connecticut Supreme Court has recognized the doctrine of assumption of the risk as a defense to absolute nuisance and has not recognized the defense as to other intentional torts.   In so ruling this court is neither expanding nor restricting the doctrine beyond that which has been annunciated by the Supreme Court.

C. TORTIOUS DIVERSION OF WATER.

In Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182 (1932), the Connecticut Supreme Court set forth the law with regard to the diversion of surface water

A landowner may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of the property.

Id. at 189 (internal citations omitted).   See also Day v. Gabriel, Superior Court for the judicial district of Stamford/Norwalk at Stamford, docket number CV 03–0196802 (August 10, 2005, Tobin, J.), affirmed, 101 Conn.App. 335 (2007).   The doctrine sometimes referred to as the “common enemy doctrine” has been modified in subsequent decisions.   The doctrine of reasonable use and reasonableness of a party's conduct is to be determined on a case by case basis considering all of the relevant circumstances and has, accordingly, enhanced the doctrine See e.g., Page Motor Co. v. Baker, 182 Conn. 484 (1980);  Peterson v. Oxford, 189 Conn. 740 (1983).   Thus the tort of diversion of surface waters may be an intentional tort but it also may be a tort that is accompanied by either reckless conduct or negligent conduct.   Since the plaintiff may be able to prove the elements of this tort if it proves that the defendant acted recklessly the defendant is entitled to maintain its special defense that the plaintiff acted with comparative recklessness or assumed the risk by the plaintiffs' reckless conduct.   Accordingly the motion to strike the special defense is denied with regard to the fifth count.

D. IWWA AND CEPA

In counts six and seven the plaintiff has alleged that the defendant has violated the IWWA and the CEPA in several ways.   Both Connecticut statutes have as their intent the protection of Connecticut's natural resources.  C.G.S. section 22a–36;  22a–15.   With regard to the Connecticut Environmental Protection Act the legislature has stated:

Declaration of policy.   It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation at any enhancement of the same.   It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.

C.G.S. section 22a–15.

The declaration of public policy contained in the IWWA is no less clear.   In the case of L'Heureux v. Hurley, 117 Conn. 347 (1933), our Supreme Court stated that one cannot waive an obligation owed by another to the public.”   Id. at 356.   While L'Heureux was decided within the context of a landlord-tenant dispute in which the court found that a tenant does not assume the risk of a landlord's violation of the legislative requirement enacted for the tenant's benefit, see also Panaromi v. Johnson, 158 Conn. 92, 109 (1969);  Donahue, supra, its holding is no less applicable to the defendants' obligations to comply with these environmental protection statutes.   The General Assembly has enacted environmental protection statutes which require those who engage in certain types of activities to comply with certain standards and requirements.   There is no basis for concluding that a party who breaches these legislative requirements can or should be excused from that breach by virtue of the conduct by another that may or may not encourage the breach.   The breach is a breach of an obligation owed to the public.   Accordingly the motion to strike the special defense with regard to counts six and seven is granted.

IV FAILURE TO MITIGATE

The plaintiffs move to strike the special defense of failure to mitigate damages insofar as the defendants seek to apply the special defense to count six and seven which are the statutory counts discussed in the immediately proceeding section.   While the conduct of the plaintiffs cannot be a defense to the defendants' alleged breach of the requirements contained in IWWA and CEPA, it is quite another issue to say that the amount of damages by way of attorneys fees and cost of litigation for violations of these duties cannot be affected by the plaintiffs' own conduct.   The obligation of the parties seeking damages to mitigate their damages is well embedded and established in Connecticut law.  Cweklinsky v. Mobile Chemical Co., 267 Conn. 210, 223 (2004).   Connecticut courts have not hesitated to apply this doctrine of mitigation of damages in cases arising out of statutory violations.  Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209 (1996).   In the Ann Howard case the Supreme Court recognized the doctrine of failure to mitigate damages was applicable to a plaintiff's statutory discrimination claim stating:  “We see no reason to stray from the established rules in the context of a discrimination complaint.   Consequently, the [employer] bears the burden of proving that [the plaintiff] failed to make reasonable efforts to mitigate the amount of damages by seeking other employment.”  Ann Howard's Apricot Restaurant, Inc. at 229.   Accordingly the motion to strike the defense of failure to mitigate damages as applied to count six and seven is denied.

V PRIVILEGE

In asserting the defense of privilege the defendant correctly asserts that the owner of a right of way may repair it and do what is reasonably necessary to make it suitable and convenient for his use.  Nichols v. Peck, 70 Conn. 439, 441 (1898);  Loft v. Town of Southbury, 188 Conn. 336, 344 (1982).   In this regard the owner of a dominant estate may maintain or alter a roadway so long as he does not unreasonably increase the burden on the servient estate.   Kerris v. Cope, 205 Conn. 332 (1987).   Consistent with this concept a superior court case notes that “it is reasonable to assume that both the dominant and serviant owners would anticipate as in this case that an established right of way for ingress and egress to a single family residence may give rise to a necessity of improvements in the easement to render it of genuine benefit to the owner of the dominant tenement.   Simonds v. Boyd, Superior Court, judicial district of New London docket number CV075002667 S, 208 WL 4926688 (October 28, 2008 Leuba, J.T.R.), opinion corrected, CV75002667 S, 2009 WL 323720 (January 14, 2009).   The problem with the assertion of the special defense of privilege with regard to the counts sounding in absolute nuisance, negligence nuisance, negligence and tortious diversion of surface waters is that each one of these causes of action requires as an essential element a component of unreasonableness on the part of the defendants.   To prevail on a claim of absolute nuisance the plaintiff must prove among other things that the invasion of the plaintiff's property was intentional and unreasonable;  Pesty v. Cushman, 259 Conn. 345, 358 (2002), citing Restatement (Second) section 822 (1979);  to prevail on a claim of negligent nuisance the plaintiff must prove as an essential element of its claim that the defendant's conduct was negligent or reckless;  Pesty, supra;  to prevail on a claim of negligence the plaintiff must prove that the defendants did not conduct themselves within the standard of reasonable care;  and finally to prevail on their claim of tortious diversion of surface waters the plaintiffs must prove that “in dealing with surface water [the defendant] has not taken only such steps as are reasonable, in light of all of the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners as well as social utility.   Reasonableness is determined on a case by case basis.   The court must consider all of the relevant circumstances, including the amount of harm caused, its foreseeability, the purpose with which the action was taken, and whether the utility of use of the land outweighs the gravity of the harm done ․” Day v. Gabriel, supra, citing Page Motor Co. v. Baker, 182 Conn. 484 (1980), and Peterson v. Oxford, 189 Conn. 740, 745 (1983).   If the facts at trial demonstrate that the defendants' conduct was reasonable under all of the circumstances then the plaintiffs will not be able to prevail on counts two, three, four and five.   The special defense of privilege is superfluous and not applicable.   In other words the defendants do not have a privilege to act unreasonably and if the facts at trial demonstrate that they did not then the plaintiff will not prevail.   Accordingly the plaintiffs' motion to strike the special defense of privilege with regards to counts two, three, four and five is granted.

VI THE MOTION TO STRIKE SPECIFIC COUNTS OF THE DEFENDANT'S COUNTERCLAIM

In addition to their special defenses the defendants have asserted a counterclaim sounding in thirteen counts.   The parties have reached an agreement that count three (unjust enrichment) and count six (intentional infliction of emotional distress) should be stricken;  the defendants reserving the right to replead.   Once again the court appreciates the efforts of counsel in coming to this agreement.   What remains is the plaintiffs' motion to strike count five (negligent misrepresentation), count seven (IWWA), count eleven (prescriptive easement) and count twelve (adverse possession).

A. COUNT FIVE–NEGLIGENT MISREPRESENTATION

In count five the defendants allege that the plaintiffs by their oral and written statements represented to the defendants that the plaintiffs were authorized to perform certain work and construct certain structures within the access way and that the plaintiffs “erroneously represented to the [defendants] that they consented to the terms of the agreement.”   The defendants further allege that this representation was made by the plaintiffs negligently with disregard to its truth or falsity “and for the purpose of inducing the defendants to begin constructing the improvements in the access way.”   The defendants further allege that they began construction as a result of the representation and have been damaged in multiple ways.   The plaintiffs move to strike this count arguing that a party cannot appropriately allege a count of negligent misrepresentation while including an allegation that the misrepresentation was made “for the purpose of inducing” the defendants to act in a certain manner.   The plaintiffs essentially argue that the allegation converts the count into a count on fraud which is the basis of the fourth count.   The plaintiffs conclude that the fifth count is simply duplicative of the fourth count and should be stricken.   The defendants however correctly counter that it is an essential element of a tort of negligent misrepresentation that the misrepresentation was made for the purpose of inducing action, even though the party making the representation was negligent regarding the truth or falsity of the matter represented.  “An actionable misrepresentation, whether made knowingly, recklessly, negligently or innocently, must be made for the purpose of inducing action upon it.  J. Frederick Scholes Agency v. E. Stewart Mitchell et al., 191 Conn. 353, 359 (1983).   See also Gaudio v. Griffin Health Services, 1991 WL 277308 (Conn.Super. Dec. 19, 1991) [5 Conn. L. Rptr. 785].   Accordingly the motion to strike the fifth count is denied.

B. COUNT SEVEN—(IWWA)

In count seven of the counterclaim the defendants allege that on numerous occasions they have offered to remediate any statutory or regulatory violations of the IWWA and requested permission to enter the Kulkin property for purposes of remediation and restoration as near as possible to its natural state.   Additionally, the defendants allege that they have filed applications with the New Canaan Environmental Commission to allow the remediation work in the Kulkin wetlands but the applications were not addressed by the Commission because the plaintiffs would not consent to the work being done.   The defendants further allege that as a result, to the extent any regulated activities are maintained in the Kulkin wetland in violation of the act the plaintiffs are responsible and further have maintained and taken part in a violation of the act by maintaining the disturbances in the Kulkin wetland and denying the defendants the ability to restore the wetland.

The plaintiffs' motion to strike this count is based upon the claim that the defendants have not alleged facts that demonstrate that they are aggrieved.   The defendants in turn initially suggest that the issue of aggrievement is a jurisdictional issue that should be raised by a motion to dismiss rather than a motion to strike.   While there is some merit to the defendants' analysis of the appropriate procedural protocol for raising jurisdictional issues, the issue of aggrievement invokes the subject matter jurisdiction of the court over the alleged statutory violation.   If the issue were one of personal jurisdiction the failure to raise it might well be deemed a waiver of the issue but the issue of subject matter jurisdiction cannot be waived and can be raised at any time.   Once the issue is raised the court must address it.  Stamford Hospital v. Vega, 236 Conn. 646 (1996).   The defendants claim that they are statutorily aggrieved as abutting property owners pursuant to C.G.S. section 22a–43.   However their claim as statutorily aggrieved parties must fail.   C.G.S. Section 22a–43 does give abutting property owners a right to appeal to the superior court certain decisions of inland wetland commissions.   However this statutory aggrievement, as it is frequently referred to, is limited to appeals from decisions of governmental bodies.   The action before the court is not such an appeal and the defendant cannot rely on provisions C.G.S. 22a–43 to establish aggrievement in this action against their neighboring property owners.

While the Supreme Court in the case of Windels v. Environmental Protection Commission, 284 Conn. 268 (2007) acknowledged that C.G.S. section 22a–44 created a private right of action to enforce the provisions of the IWWA, the Windel court was clear that the private right of action established by the legislature did not eliminate the need for a party to demonstrate aggrievement as a prerequisite to pursuing a claim under the act.   Common-law aggrievement may be established if the defendants in this case demonstrate that their interest satisfies two elements.   The party claiming aggrievement must first demonstrate “a specific, personal and legal interest in the subject matter of this decision as distinguished from a general interest such as is the concern of all members of the community as a whole”;  Huck v. Inland Wetlands and Water Courses Agency, 203 Conn. 525, 530 (1987);  and the party “must successfully establish that this specific, personal and legal interest has been specially and injuriously affected.  Id. Windel, supra at 300–03.

Essentially the defendants allege that if they violated the IWWA the plaintiffs are maintaining that violation by refusing to consent to corrective action or remediation of that violation by the defendants.   The defendants essentially allege that they are being injured by the plaintiffs' conduct in maintaining the violation and refusing to allow the defendants to cure the violation.   It would appear that the interest of the defendants is specific and personal and substantially different than that of the interest of the general public in compliance with the IWWA. Indeed, their specific interest in the subject matter may well be shown to be adversely affected if they can prevail on the merits of their claim.²  Accordingly the motion to strike count seven is denied.

C. COUNT ELEVEN—(PRESCRIPTIVE EASEMENT) AND COUNT TWELVE (ADVERSE POSSESSION)

The plaintiffs move to strike counts eleven and twelve on the basis that the defendants have alleged only legal conclusions.   In paragraph eleven the defendants allege that for a period of more than fifteen years the defendants and their predecessors have maintained two stone walls upon the access way running parallel to and on each side of the defendants' driveway and that by maintaining those stone walls the defendants and their predecessors have continually enjoyed open visible continuous and uninterrupted use under a claim of right.   Similar allegations are contained in the twelfth count on adverse possession along with allegations that the maintenance of the stone walls was open visible notorious adverse and exclusive.   The specific allegations concerning the maintenance of the stone walls are sufficient to survive a motion to strike.   The facts provable under these allegations are sufficient to establish the necessary elements.   Whether in fact the defendants do prove that the maintenance of the walls was under a claim of right or adverse to the plaintiffs and their predecessors is yet another matter.   The allegations are sufficient and the motion to strike counts eleven and twelve is denied.

VII. MOTION TO STRIKE THE PRAYERS FOR RELIEF

Finally the plaintiffs seek to strike the prayers for relief contained within the counterclaim insofar as the prayers for relief seek punitive damages for counts sounding essentially upon a contract theory.   Specifically the plaintiffs seek to strike the prayer for relief seeking punitive damages for count one (breach of contract), count two (promissory estoppel), count three (unjust enrichment) and count thirteen (breach of covenant of good faith and fair dealing).  “Punitive damages are not ordinarily recoverable for breach of contract.   Restatement, 1 Contract, section 342;  5 Corbin, Contract, section 1077;  McCormick, Damages, section 81.   This is so because as lucidly explained by Professor Corbin in the passage cited, punitive or exemplary damages are accessed by way of punishment, and the motivating basis does not usually arise as a result of the ordinary private contract relationship.”  L.F. Pace and Sons, Inc. v. Travelers Indemnity Co., 9 Conn.App. 30, 47–48, cert. denied, 201 Conn. 811 (1986).   In 1986 in the L.F. Pace and Sons case the Appellate Court recognized a claim for punitive damages against an insurance company for breaching an implied contract to issue a surety bond.   In 1996 in the case of Barry v. Posi–Seal International, Inc., 40 Conn.App. 577 (1996) the Appellate Court reviewed the law regarding the availability of punitive damages in breach of contract cases.   The Barry case concerned a claim that the defendant employer had breached an employment contract by terminating the plaintiff's employment.   The Barry court framed the issue as follows:

In the present case, the plaintiff asks us to extend the allowance of punitive damages for tortious breach of contract from the area of insurance to termination of employment

Id. at 585.   In so articulating the issue the Barry court reaffirmed the concept that punitive damages were generally not available for breach of contract claims.   Indeed, punitive damages were not available even in “tortious breach of contract” actions.   The Barry court refused to extend the availability of punitive damages for breach of contract claims arising out of the termination of employment claim at least absent evidence that the termination was violative of an important public policy.   This court reads the Barry case as limiting the availability of punitive damages in contract cases to claims based upon insurance contracts or breaches of contracts involving important public policy issues.

It is difficult to reconcile the holding and language contained within the Barry decision with the defendants' claim that it should be allowed to seek punitive damages in breach of contract claims arising between neighbors.

Of course if the defendants prevail on certain other counts (such as fraud), punitive damages may well be available to them and they will be able to avail themselves of their claim for punitive damages in accordance with settled law.   However the plaintiffs cannot prevail on their claim for punitive damages insofar as those claims rest upon the counts sounding in contract or contractual theories.   Accordingly the prayer for relief seeking punitive damages with regards to count one, two, three and thirteen are stricken.

VIII CONCLUSION

In conclusion for all these reasons stated the motion to strike the eighth special defense of comparative recklessness/assumption of the risk is granted with regard to count one (intentional trespass), count six (violation of IWWA) and count seven (violation of CEPA);  it is denied with regard to counts two (private absolute nuisance) and count five (tortious diversion of water).   The plaintiffs' motion to strike the special defense of mitigation of damages with regard to counts six (IWWA) and count seven (CEPA) is denied.   The plaintiffs' motion to strike the special defense of privilege with regard to count two (absolute nuisance), count three (negligent nuisance), count four (negligence) and count five (tortious diversion of water) is granted.   The plaintiffs' motion to strike count three (unjust enrichment) and count six (intentional infliction of emotion distress) of the defendant's counterclaim is granted by agreement.   The plaintiffs' motion to strike count five (negligent misrepresentation), count seven (IWWA), count eleven (prescriptive easement) and count twelve (adverse possession) of the defendants' counterclaim is denied.   The plaintiffs' motion to strike the prayer for relief seeking punitive damages as to count one (breach of contract), count two (promissory estoppel), count three (unjust enrichment) and count thirteen (breach of covenant of good faith and fair dealing) is granted.

GENUARIO, J.

FOOTNOTES

FN1. The defendants' amended special defenses and counterclaims were filed on August 10, 2011.   Plaintiffs' motion to strike was filed on October 3, 2011.   Subsequently the plaintiff filed a request to amend the complaint on October 31, 2011 which the court granted.   The amended complaint while maintaining the same seven counts and same theories of recovery, in addition to adding some factual allegations, reordered the first three counts of the original complaint so that the first three counts of the amended complaint are in order:  common-law trespass, private absolute nuisance and private negligent nuisance.   In this opinion all references to the counts of the complaint will be to the counts of the amended complaint and the court will treat the special defenses as directed to the counts of the amended complaint that correspond with the legal theory of relief set forth in the original complaint.   Accordingly the court will treat the motion to strike those special defenses as a motion to strike the special defenses as they relate to the appropriate count in the amended complaint..  FN1. The defendants' amended special defenses and counterclaims were filed on August 10, 2011.   Plaintiffs' motion to strike was filed on October 3, 2011.   Subsequently the plaintiff filed a request to amend the complaint on October 31, 2011 which the court granted.   The amended complaint while maintaining the same seven counts and same theories of recovery, in addition to adding some factual allegations, reordered the first three counts of the original complaint so that the first three counts of the amended complaint are in order:  common-law trespass, private absolute nuisance and private negligent nuisance.   In this opinion all references to the counts of the complaint will be to the counts of the amended complaint and the court will treat the special defenses as directed to the counts of the amended complaint that correspond with the legal theory of relief set forth in the original complaint.   Accordingly the court will treat the motion to strike those special defenses as a motion to strike the special defenses as they relate to the appropriate count in the amended complaint.

FN2. The court expresses no opinion on the merits of what appears to be a novel claim that the plaintiffs had an obligation to consent to a specific neighbor performing remediation or corrective work which would only be necessary if the plaintiffs prove that specific neighbor (the defendants) violated the IWWA in the first place.   However that is an issue which goes to the merits of the claim and not the standing of the defendants to raise the claim.   If the defendants can prevail on the merits their injuries are certainly specific, personal and legal..  FN2. The court expresses no opinion on the merits of what appears to be a novel claim that the plaintiffs had an obligation to consent to a specific neighbor performing remediation or corrective work which would only be necessary if the plaintiffs prove that specific neighbor (the defendants) violated the IWWA in the first place.   However that is an issue which goes to the merits of the claim and not the standing of the defendants to raise the claim.   If the defendants can prevail on the merits their injuries are certainly specific, personal and legal.

Genuario, Robert L., J.