Himmelstein v. Town of Windsor

Decision Date29 July 2009
Docket NumberNo. 29821.,29821.
Citation116 Conn.App. 28,974 A.2d 820
CourtConnecticut Court of Appeals

Juri E. Taalman, with whom, on the brief, was Timothy Brignole, Hartford, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, Hartford, for the appellee (named defendant).



The plaintiff, Paul R. Himmelstein, appeals from the judgment of the trial court rendered in favor of the defendant town of Windsor.1 On appeal, the plaintiff claims that the court improperly (1) concluded that the defendant's motion to strike was not fatally defective, (2) struck his nuisance count, (3) considered certain evidence submitted by the defendant in support of its motion for summary judgment and (4) granted the motion for summary judgment. We are not persuaded by the plaintiff's arguments and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. The plaintiff commenced the present action with a seven count complaint filed July 6, 2005. The plaintiff alleged that on July 20, 2004, he was riding his bicycle on Palisado Avenue in the town of Windsor and struck a Windsor police department radar trailer that negligently had been placed in the travel portion of the road by the defendant's police officers.2 As a result of this collision, the plaintiff claimed to have sustained serious injuries and damages. Count one alleged a breach of General Statutes § 13a-149 against the defendant.3 Counts two and three directed claims of negligence against the Windsor chief of police and an unnamed agent, servant or employee of the defendant, respectively. Count four set forth an allegation of nuisance against the defendant. Counts five through seven were directed against the state and alleged a breach of General Statutes § 13a-144, negligence and nuisance, respectively.

In a motion filed September 26, 2005, the defendant, the Windsor chief of police, and the unnamed agent servant or employee of the Windsor police department, moved to strike counts one through four of the plaintiff's complaint. On May 16, 2006, the court granted the motion to strike as to counts two, three and four. Specifically, the court determined, inter alia, that as a matter of law the allegations in the complaint fell within the ambit of § 13a-149, and, therefore, the exclusive remedy available to the plaintiff was a claim pursuant to that statute.

The plaintiff responded by filing an amended complaint on May 31, 2006. Count one set forth an allegation of a breach of the statutory duty in § 13a-149 against the defendant. To preserve his appellate rights, the plaintiff did not replead with respect to the counts that the court had stricken.4 Counts five through seven again alleged claims of a breach of the statutory duty in § 13a-144, negligence and nuisance against the state. The defendant filed its amended answer on July 12, 2006.

The state previously had moved to dismiss counts six and seven of the complaint. The court granted the state's motion on September 7, 2006, and dismissed those counts.5 On October 18, 2006, the plaintiff filed a withdrawal of its remaining claim against the state: a violation of the state highway defect statute that had been set forth in count five.

On March 21, 2007, the defendant moved for summary judgment as to count one, the sole remaining cause of action. On March 6, 2008, the court granted the defendant's motion. The court determined that there was no genuine issue of material fact as to the location of the radar trailer on a state road, and, therefore, the defendant was not the party responsible for that road's maintenance and could not be held liable pursuant to § 13a-149. The court then denied the plaintiff's motion for reargument and reconsideration. This appeal followed.


We first address the plaintiff's claims regarding the motion to strike filed by the defendant and granted by the court. On appeal, the plaintiff argues that the court improperly (1) concluded that the motion to strike was not fatally defective and (2) struck his nuisance count. We disagree.

As a preliminary matter, we set forth the relevant legal principles pertaining to a motion to strike. "The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552-53, 944 A.2d 329 (2008); see also Heim v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003); see also Practice Book § 10-39(a).


The plaintiff first argues that the court improperly granted the motion because the motion failed to comply with the requirements of Practice Book § 10-41. Specifically, he maintains that the defendant's motion to strike failed to enumerate "the specific claim of insufficiency applicable to each numbered count." The plaintiff also contends that setting forth the reasons in the accompanying memorandum of law does not "save the motion from being `fatally defective.'"

The defendant's motion sought to strike counts one through four of the plaintiff's complaint. The motion then stated: "As is more particularly set forth in the attached supporting memorandum of law, the [c]omplaint fails to state a cause of action upon which relief may be granted for the following reasons: (1) The plaintiff's exclusive remedy against the defendants is pursuant to ... § 13a-149 ... (2) [t]he plaintiff's cause of action sounding in nuisance is barred by the exclusivity provision of [§ 13a-149]; (3) [t]he plaintiff's claims against ... [the Windsor chief of police] and [the unnamed town employee] fail as a matter of law as his exclusive remedy is pursuant to ... § 13a-149; (4) [t]he plaintiff's claims against [the unnamed town employee] fails as a matter of law as such claims are legally invalid; and (5) [t]he plaintiff's claims against the Windsor [p]olice [d]epartment fail as a matter of law as the police department is not a legal entity amenable to suit." The motion concluded by requesting the court to strike the plaintiff's complaint.

In his objection, the plaintiff argued, inter alia, that the motion to strike was fatally defective because the specific reasons for the claim of legal insufficiencies for counts one through four were not set forth with the specificity as required by Practice Book § 10-41. In his memorandum of law, the plaintiff claimed that the defendant's motion confusingly sought to strike counts one through four, yet also sought to strike the entire complaint. He further argued that the motion failed to enumerate the specific claim of insufficiency applicable to each numbered count. At the May 1, 2006 hearing on the defendant's motion to strike, the plaintiff renewed his procedural challenge.6

In its May 16, 2006 memorandum of decision, the court, Keller, J., rejected the plaintiff's argument that the motion to strike failed to comply with the requirement of our rules of practice. The court stated: "While the [defendant does not] identify the number of the counts being referred to in any of the five paragraphs describing the claimed insufficiencies, [it does] identify in each of those paragraphs the nature of the claim contained in that count or the name of the particular [party] named in that count." It also noted that the request that "the complaint" be stricken appeared to be nothing more than a scrivener's error. Finally, the court observed that neither the court nor the plaintiff had any difficulty in understanding and responding to the defendant's motion.

"Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency shall distinctly specify the reason or reasons for each such claimed insufficiency. Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).

Notwithstanding the general reference to the entire complaint, the defendant's motion presented five specific bases as to why certain counts in the complaint were legally insufficient. We agree with the trial court that those five paragraphs identify the counts sought to be stricken, as well as specify the legal grounds for which the motion to strike should be granted. We conclude that the defendant's motion to strike adequately submitted the issues to the court. See Rowe v. Godou, 12 Conn.App. 538, 541-42, 532 A.2d 978 (1987), overruled on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988). We decline to exalt form over substance. See, e.g., Brown v. Rosen, 36 Conn.App. 206, 210, 650 A.2d 568 (1994). Accordingly, the court properly concluded that the defendant's motion to strike was not fatally defective.


The plaintiff next argues that the court improperly struck his nuisance count as to the defendant. Specifically, he claims that his claim of nuisance against the defendant was legally sufficient and that the court prevented him from pleading in the alternative. We are not persuaded.

The following additional facts are necessary for our discussion. In count one of his complaint, as part of his claim of a violation of the municipal highway defect statute, the plaintiff alleged that the radar trailer had been parked, stored or placed in...

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