Opinion
NNHCV196087004S
08-26-2019
Ivonne OSPINA v. Nehemiah A. REID et al.
UNPUBLISHED OPINION
PIERSON, J.
STATEMENT OF THE CASE
This action involves injuries allegedly sustained by the plaintiff while riding as a passenger in a taxi. According to the plaintiff’s operative complaint dated November 6, 2018, the defendant, Westport Star Taxi, LLC a/k/a Westport Taxi, LLC ("Westport Taxi"), is in the business of hiring out taxi cabs to provide transportation services to the public, charging a fee to customers for transporting them to a given destination. Further according to the plaintiff, on or about November 10, 2016, at approximately 8:57 a.m., the plaintiff was a fare-paying customer and passenger, in a taxi owned by Westport Taxi and operated by the co-defendant, Nehemiah A. Reid.
The plaintiff alleges that at the foregoing time, Reid was operating the taxi in a northerly direction on Riverside Avenue in Westport, Connecticut, when he encountered a stopped vehicle waiting to make a left-hand turn. The plaintiff further alleges that Reid passed the stopped vehicle on the right.
As Reid passed the stopped vehicle, another named defendant, Liza M. Martinez, was allegedly parked curbside on Riverside Avenue, facing north. The plaintiff claims that Martinez opened her door and Reid swerved to the left, "a maneuver that caused [the plaintiff] to fall down in [the taxi] resulting in the injuries, damages and losses ... more particularly set forth hereinafter."
This action is brought in four counts, alleging negligence against Reid (First Count), vicarious liability in negligence against Westport Taxi (Second Count), statutory recklessness against Reid (Third Count), and negligence against Martinez (Fourth Count). The complaint seeks compensatory damages and double or treble damages pursuant to General Statute § 14-295.
On January 22, 2019, the defendants, Reid and Westport Taxi, moved to strike "any allegations [of] recklessness in the plaintiff’s first count and the entire third count of the plaintiff’s Complaint dated November 6, 2018." Motion to Strike dated January 22, 2019 (No. 102). In their motion and supporting memorandum of law, the defendants argue that the allegations of recklessness set forth in the First and Third Counts fail to plead facts sufficient to support the statutory recklessness claims set forth therein. On February 13, 2019, the plaintiff filed a memorandum of law in opposition to the motion to strike. No. 109. The defendants filed a reply brief on February 15, 2019. No. 110. The court heard oral argument on the motion on May 13, 2019, at which time the matter was submitted to the court for adjudication.
DISCUSSION
I
"[A] motion to strike challenges the legal sufficiency of a pleading ..." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also Practice Book § 10-39(a); Cadle Co. v. D’Addario, 131 Conn.App. 223, 230, 26 A.3d 682 (2011). The standard of review applicable to motions to strike is well established. As the motion is directed to the viability of a party’s pleading, as a matter of law, the court’s inquiry is limited to the facts alleged in the challenged pleading. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) ("[i]n deciding upon a motion to strike ... a trial court must take the facts to be those alleged in the [pleadings] ... and cannot be aided by the assumption of any facts not therein alleged" [citations omitted; internal quotation marks omitted] ).
Although the court is thus limited to an examination of the pleadings on a motion to strike, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (internal quotation marks omitted) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); and the court is required to "read the allegations of the [challenged pleading] generously to sustain its viability ..." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (in keeping with its obligation to interpret pleading generously, court "must construe the facts in the [challenged pleading] most favorably to the [claimant]" [internal quotation marks omitted] ).
Even so, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Thus, the motion must be granted "if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215. "For the purpose of ruling upon a motion to strike, the facts alleged in a [challenged pleading] ... are deemed to be admitted." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 271 n.1, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
II
Paragraph 9 of the First Count alleges that the incident at issue "was due to the negligence and carelessness of ... Reid in one or more of the following ways ..." Thereafter, the plaintiff alleges a series of specifications in negligence, except for subparagraph g, which states that Reid "[violated] Connecticut General Statute[s] § 14-222 in that he operated said Taxi recklessly, ..." (Emphasis added.) In their motion to strike, the defendants ask the court to strike this portion of the First Count.
In so moving, the defendants do not argue that allegations of negligence and recklessness are improperly combined in a single count, but rather, that the allegations set forth in subparagraph g are insufficient to state a claim in statutory recklessness as a matter of law. The argument advanced by the defendants is the same as that relied upon by them in moving to strike the Third Count in its entirety- namely, that under our rules of pleading, the plaintiff’s allegations of statutory recklessness are insufficient. The court turns to a consideration of this argument.
"There is a wide difference between negligence and reckless disregard for the rights or safety of others, ..." Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958). "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and entitles the plaintiff to relief ... Acts amounting to recklessness or negligence and acts amounting to an intentional tort ... do not constitute a single group of facts. They are separate and distinct causes of action ... Under Practice Book § 10-26, separate causes of action must be pleaded in separate counts of a complaint ... A complaint is confusing when it combines two or more causes of action into a single count ... The proper way to cure this confusion ... is to file a request to revise ..." (Citations omitted; internal quotation marks omitted; brackets omitted.) Czahur v. Koeller, Superior Court, judicial district of New Haven, Docket No. NNH-CV-01-0456412 S (Feb. 14, 2003, Harper, J.) In this case, the defendants did not file a request to revise addressed to subparagraph g of the First Count.
III In 1879, Connecticut abolished the common-law forms of action and became a fact-pleading jurisdiction. "The Practice Act of 1879 abolished the procedural differences between law and equity, instituted the unitary form of civil action and instituted the simplified system of fact pleading. Public Acts 1879, c. 83." State v. Clemente, 166 Conn. 501, 540, 353 A.2d 723 (1974) (Bogdanski, J., dissenting) (Citations omitted); see also Zachary D. Clopton, "Making State Civil Procedure," 104 Cornell L.Rev. 1, 71 [Appendix Table C: State Pleading] (2018) ("Connecticut has been a fact pleading state by statute since at least 1879") (citations omitted; footnote omitted). As noted by Justice Hamersley at the beginning of the twentieth century, "[the] practice act abolished forms of action. With its enactment, pleading, as a system of technical form, substantially disappeared. The person claiming redress for legal wrongs done him by another may now state in one complaint all facts material to support his claim, and demand redress for all wrongs that can be legally inferred from the facts stated, ... Pleading, then, ceases to be the mistress, and becomes the handmaid of justice." Dunnett v. Thornton, 73 Conn. 1, 5-6, 46 A. 158 (1900).
Today, Connecticut’s fact-pleading requirement is established by Practice Book rule. Thus, Practice Book § 10-1- entitled, "Fact pleading" provides in part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statement to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation." See also Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213 n.7, 32 A.3d 296 (2011) ("Connecticut is a fact pleading state") (citing Sullins v. Rodriguez, 281 Conn. 128, 147, 913 A.2d 415 [2017] and Practice Book § 10-1).
"Despite the long-standing history of lenient pleadings in federal courts, many state courts find it preferable to take a fact pleading approach, including Connecticut." (Footnote omitted.) Bethany L. Dimarzio, Note, "Standards For Pleading A Case Under CUIPA: No Exceptions To The Connecticut Fact Pleading Requirement," 18 Conn. Ins. L.J. 559, 563 (2011-2012). "Attorneys handling full workloads of civil litigation cases find that fact pleading standards make their cases more focused, and ultimately less expensive and less time-consuming than if a more lenient approach was followed. The adoption and practice of fact pleading in Connecticut is therefore not arbitrary or accidental, but serves to benefit the judicial system by conserving resources and expediting meritorious cases." Id.
There are compelling reasons to adopt a standard of pleading that is stricter than notice pleading. As noted by one commentator, "[strict] pleading has obvious economic advantages over notice pleading ... * * * Strict pleading also likely decreases other social costs traditionally associated with litigation. Under strict pleading, some lower number of cases will be brought, and fewer cases will survive the pleading stage. Thus, one would expect the deadweight administrative costs of civil litigation- costs associated with running the courts- to be lower under strict pleading than under notice pleading. As important, the cases that survive a relatively more rigorous pleading standard are likely to be less expensive to develop and try in absolute terms, ... Strict pleading limits the overall systemic cost of litigation." Paul Stancil, "Balancing The Pleading Equation," 61 Baylor L. Rev . 90, 148-49 (2009).
General Statutes § 14-295 reads, in part, as follows: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a or 14-227m, subdivision (1) or (2) of subsection (a) of section 14-227n or section 14-230, 14-234, 14-237, 14-239, 14-240a or 14-296aa, and that such violation was a substantial factor in causing such injury, death or damage to property." (Emphasis added.)
The question presented is whether § 14-295 modifies Connecticut’s fact-pleading standard for the category of cases to which it applies. This question has been the subject of extensive consideration and discussion in our trial court since the statute was amended in 1988. As observed by one court, the issued raised by the defendants’ motion to strike "raises a question that has been the subject of disagreement among the judges of the Superior Court since a 1988 amendment to § 14-295, and no appellate decision has yet resolved the disagreement." Pope v. Sterling, Superior Court, judicial district of Hartford, Docket No. HHD-CV-15-6058642 S (Aug. 24, 2015, Huddleston, J.) (60 Conn.L.Rptr. 883).
"The Appellate Courts have yet to clarify the degree of specificity required for pleading recklessness under General Statutes Section 14-295 ... There is a split of authority in the Superior Court[ ] regarding the sufficiency of general allegations of recklessness under General Statutes 14-295 ..." (Internal quotation marks omitted.) Cuadra v. Hallock, Superior Court, judicial district of New Haven at Meriden, Docket No. NNI-CV-18-6011762 S (July 11, 2018, Harmon, J.), citing Lewis v. Willix, Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-05-5000399 S (Aug. 15, 2006, Jennings, J.T.R.) "The minority view is that a claim under § 14-295, should be similar to the standard for a claim under common-law recklessness, and thus should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on ... Therefore, under the minority view, a plaintiff must plead specific facts constituting recklessness above and beyond facts constituting mere negligence ... * * * In contrast, the majority approach is that § 14-295 does not mandate the same level of specificity as necessary for a claim under common-law recklessness. The majority view requires that a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in 14-295: that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff’s injuries ... The majority view is based both on an analysis of the legislative history as well as a review of the statutory language of § 14-295 itself. These cases conclude that as long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14-295." (Citations omitted; internal quotation marks omitted.) Waranowicz v. Arseneault, Superior Court, judicial district of Waterbury, Docket No. UWY-CV-18-6038410 S (July 20, 2018, Roraback, J.) Put another way, those judges adopting the majority view have reasoned, "quite straightforwardly, that since the statute itself requires only that the plaintiff ‘specifically plead’ such a deliberate or reckless violation, a simple recitation of the statutory elements should be all that is necessary to put the defendant on notice that a claim under the statute will be pursued." Armstrong v. Smith, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94-053 39 47 S (Dec. 2, 1994, Sheldon, J.) (13 Conn.L.Rptr. 120). "Cogent arguments are made on both sides of the debate, ..." Pope v. Sterling, supra, Superior Court, judicial district of Hartford, Docket No. HHD-CV-15-6058642 S (Aug. 24, 2015, Huddleston, J.) (60 Conn.L.Rptr. 883).
As evidenced by recent decisions, the debate between those Superior Court judges espousing the "majority view" and those endorsing the "minority view" is ongoing. Compare Wilson v. Lossing, Superior Court, judicial district of Hartford, Docket No. HHD-CV-18-6094953 S (Apr. 25, 2019, Gordon, Matthew Dallas, J.) (adopting majority view), with Hook v. Palmero, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT-CV-18-6081001 S (Feb. 11, 2019, Stewart, J.) (adopting minority view); see also Zukowski v. Cunningham, Superior Court, judicial district of Litchfield at Torrington, Docket No. LLI-CV-18-6019638 S (Jan. 22, 2019, Shaban, J.) (67 Conn.L.Rptr. 660) (following majority view); Waranowicz v. Arsenault, supra, Superior Court, judicial district of Waterbury, Docket No. UWY-CV-18-6038410 S (July 20, 2018, Roraback, J.) (following majority view); Oliva v. Giannattasio, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST-CV-18-6035753 S (June 11, 2018, Adams, J.T.R.) (following majority view); Pope v. Sterling, supra, Superior Court, judicial district of Hartford, Docket No. HHD-CV-15-6058642 S (Aug. 24, 2015, Huddleston, J.) (60 Conn.L.Rptr. 884) (following minority view). The defendant’s motion requires this court to weigh in on the discussion.
As observed by the court in Hook v. Palmero, supra, the division of opinion that exists (and has existed) among Superior Court judges "comes down to a dispute over whether [General Statutes § 14-295’s] ‘specifically pleaded’ language supplants the requirement of fact pleading." Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT-CV-18-6081001 S (Feb. 11, 2019, Stewart, J.). For the reasons that follow, this court adopts the majority view and holds that, where it applies, § 14-295 modifies our established fact-pleading requirements. In so holding, the court is mindful of the long and important tradition of fact pleading in our state, and its continuing importance to the fair and efficient administration of justice.
Interpreting General Statutes § 14-295 constitutes an exercise in statutory construction. "The purpose of statutory construction is to give effect to the intended purpose of the legislature.... If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent." (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995). "It is axiomatic, ... that when the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary." (Citations omitted.) Boris v. Garbo Lobster Co., Inc., 58 Conn.App. 29, 36, 750 A.2d 1152 (2000).
General Statutes § 14-295 provides- clearly, unambiguously, and explicitly- that in any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages "if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of [certain enumerated statutes], and that such violation was a substantial factor in causing such injury, death or damage to property." (Emphasis added.) See, e.g., Wilson v. Lossing, supra, Superior Court, judicial district of Hartford, Docket No. HHD-CV-18-6094953 S (Apr. 25, 2019, Gordon, Matthew Dallas, J.) ("The court concludes that the language of the statute is clear and unambiguous ..."); Zukowski v. Cunningham, supra, Superior Court, judicial district of Litchfield at Torrington, Docket No. LLI-CV-18-6019638 S (Jan. 22, 2019, Shaban, J.) (67 Conn.L.Rptr. 661) ("[The] language of § 14-295 is unambiguous ..."). As stated in a recent decision, "the language of § 14-295 clearly sets forth what is required to sustain a claim for double or treble damages, and if the stated pleading requirements are met, the pleading is sufficient." Oliva v. Giannattasio, supra, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST-CV-18-6035753 S (June 11, 2018, Adams, J.T.R.) (citations omitted).
Although the pleading requirements of § 14-295 are clear and unambiguous, it is noteworthy that at the time the statute was enacted, our legislature was well aware of Connecticut’s status as a fact-pleading jurisdiction. "It is a ... principle of law that the legislature is presumed to know the existing law." State v. Nelson B., 48 Conn.Supp. 127, 131, 832 A.2d 1235 (2003). Given that it was cognizant of Connecticut’s fact-pleading rules at the time of its enactment, "[if] a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature." Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. FBT-CV-01-0383637 S (July 21, 2001, Stevens, J.) (30 Conn.L.Rptr. 78). Such an explicit requirement does not appear in General Statutes § 14-295.
As the court has determined that the provisions of § 14-295 are clear and unambiguous, under our rules of statutory construction, no further analysis is required. The language of the statute is conclusive of legislative intent and additional inquiries into legislative purpose are unnecessary. Boris v. Garbo Lobster Co., Inc., supra, 58 Conn.App. 36.
IV
Having adopted the majority view, the court turns to the allegations challenged by the defendants in their motion to strike. The claims of recklessness set forth in subparagraph g of paragraph 9 of the First Count, and in the Third Count, are considered separately.
A
With respect to subparagraph g of paragraph 9 of the First Count, the motion to strike raises a procedural question- namely, whether it is proper for the court to strike individual paragraphs (or subparagraphs) of a count of an operative complaint. This court discussed the procedural issue presented in Lacks v. White, Superior Court, judicial district of New Haven at New Haven, Docket No. NNH-CV-16-5036649 S (Sept. 25, 2018, Pierson, J.), as follows: "In general, a motion to strike is posed against an entire count, and all of the claims in a count stand if any one claim stands. ‘If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike.’ Bouchard v. People’s Bank, supra, 219 Conn. 471. ‘A [motion to strike] addressed simply to the count [in its entirety] will be overruled if any one theory is supported by the allegations in the count.’ (Internal quotation marks omitted.) Jolen, Inc. v. Brodie & Stone, PLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053151-S (May 13, 2016, Kamp, J.) (62 Conn.L.Rptr. 343, 346 n.2) (one of plaintiff’s theories is sufficient to allow CUTPA claim to proceed, motion to strike is denied); see also Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, 40) (where motion to strike challenges entire count, but any part of plaintiff’s claims therein are legally sufficient, motion will fail); Farago v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 524911 (May 18, 1993, Teller, J.) (if part of count is viable, it is not subject to motion to strike).
"However, in certain circumstances, independent claims may be stricken from a single count if they are sufficiently separable- for example, if the claims are stated in separate paragraphs and when leaving the improper allegations in the count might cause confusion. In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), our Supreme Court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.1) and quoted parenthetically the following language from that case: ‘Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint.’ (Internal quotation marks omitted.) The court in Coe v. Board of Education also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV- 04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: ‘Prior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint ... the proper course for the court is to strike those allegations only ...’ [Internal quotation marks omitted.] Id. ; see also Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) (‘[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense’ [internal quotation marks omitted] ). Furthermore, in Donovan v. Davis, 85 Conn. 394, 397-98, 82 A. 1025 (1912), the court stated: ‘A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]. The only remedy "by which to test the sufficiency of a cause of action or defense, whether stated in one pleading, count or defense, or in a paragraph or paragraphs thereof," is a [motion to strike].’ See, e.g., Tiplady v. Maryles, 158 Conn.App. 680, 701-02 and n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015)."
The court concludes that the defendants may challenge subparagraph g by way of a motion to strike. Subparagraph g, which stands separate and apart from the other subparagraphs of paragraph 9, attempts to state a cause of action in statutory recklessness that is distinct from the claims of negligence that appear in the preceding and subsequent subparagraphs. As noted previously, "[there] is a wide difference between negligence and reckless disregard for the rights or safety of others, ..." Dumond v. Denehy, supra, 145 Conn. 91.
The court concludes that subparagraph g must be stricken because, applying the majority view of pleading under § 14-295, it fails to allege the required statutory elements. For example, while alleging a violation of General Statutes § 14-222, it does not state that such violation was committed "deliberately or with reckless disregard," nor does it allege that the "violation was a substantial factor in causing such injury, ..." As subparagraph g of paragraph 9 of the First Count fails to satisfy the pleading requirements of General Statutes § 14-295, it must be stricken.
B
By contrast, the Third Count of the complaint alleges, in part, as follows: "Defendant Reid operated [the taxi] with reckless disregard in violation of Conn. Gen. Stat. § 14-218a and § 14-222 and said violations were a substantial factor in causing the Plaintiff’s injuries." Under the majority rule, the foregoing language satisfies the statutory directive that the injured party specifically plead that another party deliberately or with reckless disregard operated a motor vehicle in violation of one or more enumerated statutes, and that such violation a substantial factor in causing such injury. As a result, the Third Count is legally sufficient.
CONCLUSION
For the foregoing reasons, the motion to strike is GRANTED as to subparagraph g of paragraph 9 of the First Count; the motion to strike is DENIED as to the Third Count.