Valle v. Prince, No. Hdsp-114307 (Jul. 27, 2001) ( 2001 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION In this summary process action the plaintiff is seeking possession of the premises in a two count complaint alleging the following: (1) The lease has terminated by lapse of time and (2) The defendant no longer has the right or privilege to occupy the premises. The plaintiff caused a Notice to Quit to be served on April 25, 2001. The Notice to Quit stated the following:

"Per Sec. 47a-23 Original right or privelege (sic) to occupy premises has been terminated [also lapse of time or lease ended]."

The defendant filed a Request to Revise the Second count of the complaint. The plaintiff revised the count as follows:

"The defendant no longer has the right or privilege to occupy the premises . . . The defendant entered into a monthly rental agreement on April 1, 2001 through April 30, 2001. The defendant's right or privilege to occupy said premises terminated on May 1, 2001."

Thereafter, the defendant moved to Strike the Second Count alleging that it failed to state a cause of action. The complaint stated the term of the rental agreement with the right or privilege terminated on May 1, 2001. The Notice to Quit was served too soon for the reason given.

Discussion The function of a Motion to Strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Novametrix Medical Systems, Inc. v. BOC Group, Inc.,224 Conn. 210, 214-215, 618 A.2d 25 (1992). In ruling on a Motion to Strike the Court is limited to the facts alleged in the complaint. Id. 215. CT Page 9101

Connecticut Practice Book § 10-25 permits the plaintiff to claim alternative relief, based upon an alternative construction of the cause of action. However, in the present case the revised second count of the complaint specifically states that the rental agreement was through April 30, 2001 and the right or privilege to occupy the premises terminated on May 1, 2001. The Notice to Quit served on April 25, 2001 also stated that "the right or privilege has terminated."

The Notice to Quit on the basis of right or privilege has terminated was served on April 25, 2001, prior to April 30, 2001, the end date of the rental agreement. It was also served prior to May 1, 2001 the date specified in the second count of the complaint as the date the right or privilege to occupy terminated. Therefore, the plaintiff in the revised complaint failed to state a cause of action.

The Motion to Strike the revised second count is granted.

_______________ CRAWFORD, JUDGE