DocketNumber: No. 5337
Citation Numbers: 1996 Conn. Super. Ct. 5194
Judges: DiPENTIMA, JUDGE.
Filed Date: 7/1/1996
Status: Non-Precedential
Modified Date: 7/5/2016
In considering this motion to strike, the court construes the allegations of the CUTPA count in a light most favorable to the defendant claimant, and does not consider matters outside of the pleadings. Amodio v. Cunningham,
Allegations of CUTPA Count
In Count Three of the Counterclaim, the defendant alleges that in May 1991 the plaintiff and defendant negotiated the subject lease, and, in June 1991, the lease was executed and the defendant began rewiring, painting and carpeting the premises. In August 1991, the defendant received a report that the presence of asbestos in the air stream made the premises unacceptable for occupancy. After notifying the plaintiff of this breach and offering to amend the lease to provide for asbestos abatement, the defendant learned that CLP had discontinued electrical power to the premises because of the plaintiff's failure to pay its bill. On September 30, 1991, the defendant terminated the lease. The CUTPA count incorporates the willful or intentional misrepresentation action of the Second Count that is based on the above factual allegations. Specifically, the defendant alleges that the plaintiff's actions in misrepresenting and concealing the asbestos condition of the premises, the air quality of the premises and the emission of materials and substances emitted into the premises violated C.G.S. §
Discussion
Under P. B. § 152, a party may move to strike a pleading or portion thereof which is legally insufficient. Ferryman v.Groton,
In two limited situations, however we will allow the use of a motion to strike to raise the defense of the statute of limitations . . . The second is where "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of liability itself as created, and not of the remedy alone." DeMartino v. Siemon,
90 Conn. 527 ,528-29 ,97 A. 765 (1916).
Forbes, 31 Conn. App. At 239-240.2
Our Supreme Court has told us that the Connecticut Unfair Trade Practice Act does not have its roots in common law, but rather in the Federal Trade Commission Act. Associated InvestmentCo. Ltd. Partnership v. Williams Associates IV,
There is no allegation that any of the plaintiff's acts or omissions occurred after September 30, 1991, nor is there an allegation of any continuing course of conduct or concealment after that date. C.G.S. §
An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.
The original counterclaim alleging this count was filed on October 19, 1995, more than four years after the last alleged act or omission of the plaintiff. C.G.S. §
Accordingly, in viewing the allegations in a light most favorable to the defendant, the court finds that the allegations of the Third Count of the counterclaim do not set forth a sufficient cause of action under C.G.S.
Alexandra Davis DiPentima, Judge