DocketNumber: No. CV93 04 43 00
Citation Numbers: 1994 Conn. Super. Ct. 12210
Judges: THOMPSON, J.
Filed Date: 12/2/1994
Status: Non-Precedential
Modified Date: 4/18/2021
The defendants, Ann Marie Maffeo and John Maffeo, have filed an answer to the complaint which includes nine special defenses. The plaintiff has moved to strike all nine special defense. The defendants, Ann Marie Maffeo and John Maffeo, do not oppose the motion to strike being granted as to the first, third, fourth, sixth and eighth special defenses.
The second special defense alleges that the guarantees are contracts of adhesion and therefore void ab initio. The fifth special defense alleges a defense of impairment of collateral. The seventh special defense alleges lack of consideration as to Ann Marie Maffeo.
In deciding a motion to strike, the court must assume the truth of the allegations of the pleading under attack and cannot consider material extrinsic to the pleading itself. Gordon v.CT Page 12211Bridgeport Housing Authority,
In the second special defense (contract of adhesion) and the seventh special defense (lack of consideration), the defendants make allegations, which if proven would affect the validity of the guarantees ab initio. As to these special defenses the plaintiff relies on the doctrine set forth in the case of D'Oench Dume Co.v. FDIC,
As stated above, the fifth special defense alleges impairment of the collateral. The plaintiff relies on the language of the guarantee to argue that this special defense must be stricken since the guarantee is absolute and unconditional thus there is no duty on the part of the plaintiff as alleged in the fifth special defense. However, the court cannot go outside the scope of the pleading under attack in deciding a motion to strike but must assume the truth of the facts alleged. The motion to strike cannot be granted as to the fifth special defense for that reason.
The ninth special defense alleges CUTPA (Connecticut Unfair Trade Practices Act) violations based upon the same allegations contained in the special defense discussed above. In the court's view, CUTPA is a sword not a shield. CUTPA is a remedial statutory scheme which permits an action for the recovery of monetary damages by one who has suffered an ascertainable loss as a result of an unfair trade practice. If the defendants were to prove one of the special defenses which they rely on for their CUTPA claim, their liability would be extinguished thereby. The motion to strike should therefore be granted as to the ninth special defense.
In summary, the motion to strike is granted as to the first, third, fourth, sixth, eight and ninth special defenses. It is denied as to the second, fifth, and seventh special defenses.
THOMPSON, J. CT Page 12212