Oquendo v. Connecticut Investment Prop., No. Cv 94317237s (Jul. 12, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT Defendant Connecticut Investment Properties Corporation, Inc. moves for summary judgment. It claims the plaintiffs have failed to allege legally cognizable causes of action in four of the nineteen counts which the plaintiffs have plead against the defendant and, as relief, requests this court to enter judgments in its favor on the four insufficient counts. For the reasons stated below, the defendant's motion for summary judgment is denied.

"The office of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues." Burke v. Avitabile,32 Conn. App. 765, 772, 630 A.2d 624 (1993). Our rules of practice do not provide for a judgment in favor of a party upon fewer than all the counts of a complaint when relief is sought against the party in the remaining counts. Traditionally, the legal sufficiency of any one or more counts of a complaint is attacked by a motion to strike. See Practice Book § 152. Whenever a motion to strike is granted, the party whose pleading has been stricken may file a new pleading within fifteen days. See Practice Book § 157. Should this court enter a "judgment" on a few of the many counts directed against Connecticut Investment Properties Corporation, Inc., the plaintiff would not be able to replead and the court's ruling would not be a final, appealable decision since relief is sought against the defendant in the remaining counts. See Practice Book § 4002(c). CT Page 8465

There are contested factual issues with respect to the claims against Connecticut Investment Properties Corporation, Inc. The motion for summary judgment is denied.