Opinion
No. FST CV 08 5005944 S
March 19, 2010
MEMORANDUM OF DECISION MOTION TO STRIKE #140
FACTS AND PROCEDURAL HISTORY
The plaintiff, David Friedman, commenced this action by service of process on the defendants Lillian August Designs, Inc. (Lillian August) and Stanley M. Seglison Properties, LLC (SMS Properties) on December 6, 2007 and December 12, 2007, respectively. In his complaint, the plaintiff alleged that he slipped and fell on an icy sidewalk in front of Lillian August Designs, Inc., which is located at 32 Knight Street, Norwalk, on December 9, 2005. The plaintiff filed an action against SMS Properties on the belief that SMS Properties owned the property where the plaintiff fell. Subsequently, the plaintiff learned that SMS Properties did not own the property in question and that the owner was 32-41 Knight Street (Knight Street).
On February 27, 2008, the plaintiff moved to substitute Knight Street as the defendant property owner and filed an amended complaint alleging claims against Knight Street. On April 21, 2008, the court, Downey, J., granted the motion to substitute. After the court granted the plaintiff's motion to substitute Knight Street as a defendant and accepted the amended complaint as the operative complaint, the plaintiff did not serve process on Knight Street. On June 12, 2008, which was three and a half months after the plaintiff filed the amended complaint, Knight Street filed a motion to dismiss for lack of personal jurisdiction and failure of service of process. On October 3, 2008, the court, Pavia, J., granted the motion as to Knight Street.
In the operative complaint, the plaintiff's sole claim against Lillian August is for negligence. On February 2, 2009, Lillian August filed a motion to implead Knight Street, Olympia Construction Company, Inc., (Olympia), and Henry Brothers Landscaping, LLC (Henry Bros.) as third-party defendants. The court, Adams, J., granted the motion to implead, and on April 1, 2009, Lillian August filed a third-party complaint.
In count one of the third-party complaint, Lillian August alleged that Knight Street breached its lease agreement with Lillian August when it failed to provide proper maintenance services. Count two alleged an indemnification claim for the negligence of Knight Street. The third and fourth counts allege indemnification claims for the negligence of Olympia and Henry Bros., respectively.
On June 24, 2009, Knight Street filed a motion to strike count one on the ground that it was an independent claim and it failed to state a cause of action for indemnification. This court granted the motion to strike on September 21, 2009 and stated that "Nowhere in the first count does the third party plaintiff indicate that the third party defendant is liable to it for all or part of the plaintiff's claim." Friedman v. Lillian August Designs, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 085005944. This court noted that the second count of the original third-party complaint was "clearly an indemnification claim" because of the language "the third party defendant [Knight Street] is or may be liable to [Lillian August] for all or part of the plaintiff David Friedman's claim against [Lillian August]."
On November 3, 2009, Knight Street moved to strike count one of the substitute third-party complaint for failure to state a claim upon which relief can be granted. Lillian August filed an objection to the motion to strike and a memorandum in support of the objection.
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). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
"The language of § 52-102a, which describes a third party who may be liable to the defendant for all or part of the claim, refers to causes of action for indemnity and contribution respectively." Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989). "The language of [the precursor to Practice Book § 10-11] makes clear that a third party plaintiff is limited to claims for indemnity and contribution as to the claims asserted by the original plaintiff." Blue Cross/Blue Shield v. Crestwood Ford, Superior Court, judicial district of New Haven, Docket No, CGV 95 0366530 (August 15, 1996, Corradino, J.). "As a fundamental and threshold requirement [of bringing an action within the requirements of § 52-102a], a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against him." Commissioner v. Lake Phipps Land Owners Corporation, 3 Conn.App. 100, 102, 485 A.2d 580 (1985).
In Great Spring Water v. Porter Chadburn, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0155158 (August 24, 1998, Lewis, J.) [ 23 Conn. L. Rptr. 153], a third-party defendant moved to strike a third-party complaint filed against it. Id. In the first count of the complaint, the defendant/third-party plaintiff stated that the third-party defendant breached its contractual obligations to the third-party plaintiff and that this breach exposed the third-party plaintiff to liability to the original plaintiff. Id. Additionally, the first count alleged that the breach caused the third-party plaintiff to incur expenses in its defense against the plaintiff's claims. Id. The third-party plaintiff sought indemnification in its prayer for relief. Id. The court stated that as to count one, the third-party plaintiff "properly alleges a claim for indemnification based on violation of a contract obligation . . ." Id. The second count of the complaint was a breach of contract claim against the third-party defendant only. Id. The court stated that the "second count of the third-party complaint does not attempt to pass on liability to [the third-party defendant]. It attempts to raise an independent claim and is an inappropriate use of the impleader statute." Id. The court denied the motion to strike as to count one and granted the motion as to count two. Id.
In Domogala v. Molin, 57 Conn.App. 525, 749 A.2d 676 (2000), a plaintiff slipped and fell in a parking lot owned by the defendant. Id. Subsequently, the defendant/third-party plaintiff filed a third-party complaint against a third-party defendant who allegedly was responsible for maintenance. Id., 526. The third-party complaint "alleged breach of contract and sought indemnification." Id. After the Trial Court granted the third-party defendant's motion for a directed verdict on the third-party complaint, the Appellate Court reversed the decision. Id., 528. The Appellate Court stated that there was an issue of fact on "the issue of control of the premises." Id. Thereafter, the Appellate Court reinstated the third-party complaint and "remanded for a new trial on the third-party complaint." Id.
In the present case, Knight Sreet moves to strike count one of Lillian August's substitute third-party complaint for failure to state a claim upon which relief may be granted. Knight Street argues that count one is a claim for the breach of a lease, which is an independent claim that fails to state a cause of action for indemnification as required by § 52-102a and Practice Book § 10-11. Lillian August counters that count one is properly alleged, because it states that Knight Street is liable only to the extent that Lillian August is held liable.
Lillian August filed the substitute third-party complaint, which is the operative complaint, after this court granted Knight Street's June 24, 2009 motion to strike count one of the original third-party complaint In this court's memorandum of decision granting the motion, this court noted that Lillian August had not indicated that Knight Street was liable to Lillian August for all or part of the plaintiff's claim. This court cited the threshold requirements for an impleader and identified that count one of the original third-party complaint did not meet those requirements.
After this court's decision, Lillian August reworded count one, and the substitute third-party complaint adheres to this court's earlier instruction. The count alleges that Knight Street breached its lease agreement and that "[Knight Street] is or may be liable to [Lillian August] for all of part of the plaintiff David Friedman's claim against [Lillian August]." This is the wording provided by the Appellate Court and identified by this court as the threshold requirement of an impleader. Further, Lillian August's new count one is more similar to the properly alleged first count than the improper second count in Great Spring Water v. Porter Chadburn, Inc., supra, Superior Court, Docket No. CV 96 0155158, because count one of Lillian August's substitute third-party complaint attempts to pass liability on to the third-party defendant.
CONCLUSION
Therefore, Knight's Street's motion to strike count one of the substituted third-party complaint is denied.