DocketNumber: No. 0119967
Citation Numbers: 1994 Conn. Super. Ct. 8540
Judges: SYLVESTER, J.
Filed Date: 8/22/1994
Status: Non-Precedential
Modified Date: 7/5/2016
In the third count, which is the subject of this motion to strike, the plaintiff alleges that its predecessor in interest was under the mistaken impression that P M Development was the owner of the subject properties. The plaintiff alleges, however, that the subject properties, in addition to several other properties referenced by the mortgage, were actually owned individually by the partners of P M Development, Louis Marano, Elizabeth Marano, Geraldine Possemato, Elaine Possemato, and Richard Possemato. The complaint alleges that the plaintiff's predecessor notified the defendants of the mistake and requested them to rectify it, to which request the individual defendants demurred. The plaintiff, therefore, seeks a reformation of the mortgage contract to the true intent of the parties, which it argues was to have the individual partners of P M Development parties to the mortgage.
Louis and Elizabeth Marano move to strike the third count as it applies to them (¶¶ 21(a) and (b)), arguing that the third CT Page 8541 count fails to state a legally valid cause of action for reformation. The plaintiff has timely filed a memorandum in opposition to the motion to strike.
"A motion to strike is the proper vehicle by which to test the legal sufficiency of a complaint or any count therein. Practice Book § 152(1)." Babych v. McRae,
As the plaintiff notes, the third count attempts to establish a cause of action for reformation.
"Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction. 5 Pomeroy, Equity Jurisprudence (2d Ed.) 2096; 53 C.J. p. 941; Amer. Law Institute Restatement, Contracts, Vol. 2, 504, 505 . . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to mistake of one party coupled with fraud, actual or constructive, or inequitable conduct on the part of the other. 5 Pomeroy, Equity Jurisprudence (2d Ed.) 2097; 53 C.J. p. 949 . . . ." (Citations omitted.) Home Owners' Loan Corporation v. Stevens,
120 Conn. 6 ,9-10 ,179 A. 330 (1935).
(Footnote omitted.) Harlach v. Metropolitan Property Liability Ins.,
The plaintiff alleges that "[i]n agreeing to the terms of the Note and the Mortgage, Plaintiff's predecessor in interest, Citytrust was under the mistaken impression that Defendant P M was the record owner of all the premises" referenced in the mortgage. (Third Count, ¶ 21.) The third count does not contain an allegation of any mistake, fraud or inequitable conduct on the part of the defendants. Accordingly, the moving defendants' (Louis and Elizabeth Marano) motion to strike the third count, as to the defendants Louis and Elizabeth Marano, is granted.
SYLVESTER, J.