Opinion
No. CVH-7605
February 18, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This is a housing discrimination action brought by the plaintiff, the Commission on Human Rights and Opportunities (Commission), on behalf of Ernest Cameron, a prospective tenant. After a Commission investigator found reasonable cause to believe that the defendants had unlawfully discriminated against Cameron on the basis of a lawful source of income in violation of General Statutes § 46a-64c, the defendants, Dennis Hersh and 58A Buckingham Street, LLC, elected to have the Commission bring a civil action in Superior Court pursuant to General Statute § 46a-83 (d).
General Statutes § 46a-64c (a) provides in relevant part: "It shall be a discriminatory practice in violation of this section: (1) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of . . . lawful source of income. . . ." General Statutes § 46a-63 defines the term "lawful source of income" as "income derived from Social Security, supplemental security income, housing assistance, child support, alimony or public or state-administered general assistance."
With regard to discriminatory practice complaint procedure, General Statutes § 46a-83 (d) (2) provides in relevant part: "If the investigator makes a determination that there is reasonable cause to believe that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from receipt of notice of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to section 46a-84. If either the complainant or the respondent requests a civil action, the commission, through the Attorney General or a commission legal counsel, shall commence an action pursuant to subsection (b) of section 46a-89 within ninety days of receipt of the complainant's or the respondent's notice of election of a civil action."
BACKGROUND
The Commission alleges the following facts in the operative two count complaint, dated December 18, 2007. On August 4, 2006, Cameron responded to a housing advertisement published in the Hartford Courant for a one bedroom apartment on Buckingham Street in Hartford. Cameron called the telephone number listed in the advertisement, and a man answered the phone. Cameron inquired whether the apartment was still available, and the man confirmed that it was. When Cameron asked the man whether he accepted section 8 rental assistance payments the man replied "no." Cameron believes this man to be the defendant Hersh. The property is owned by 58A Buckingham Street, LLC. On September 25, 2006, Cameron filed a complaint with the Commission, alleging that Hersh had discriminated against him on the basis of a lawful source of income in violation of General Statutes § 46a-64c. In March, 2007, Cameron amended his complaint with the Commission to add 58A Buckingham Street, LLC, as a respondent.
On February 15, 2008, the defendants filed a motion to strike the entire complaint in the present Superior Court action on the ground that it "fails to set forth a cause of action against either Defendant." The defendants have submitted a memorandum of law in support of the motion. On May 2, 2008, the Commission filed a memorandum of law in opposition, in which it argues that the motion to strike must be denied, as the defendants have failed to specify the grounds of legal insufficiency in their motion as required by Practice Book § 10-41. In response, on June 10, 2008, the defendants filed a document entitled "amended motion to strike," which states that the defendants move to strike the entire complaint "on the basis that the allegations of the complaint and prayer for relief are legally insufficient to state a claim on which relief could be granted. In support thereof, the defendants argue that the [complaint] fails to set forth a legally insufficient cause of action against either Defendant." In their reply memorandum, also filed on June 10, 2008, the defendants argue that they have cured any defect in the original motion to strike by filing their amended motion to strike.
The Commission makes additional arguments in its memorandum, which the court need not address because the commission's first argument is dispositive of the present motion.
In Stuart v. Freiberg, 102 Conn. App. 857, 927 A.2d 343 (2007), the Appellate Court considered whether the failure to comply with Practice Book § 10-41 renders a motion to strike fatally defective. There, the defendant "moved to strike all of the counts in the plaintiffs' complaint `on the grounds that they are legally insufficient and fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' without further specificity." Id., 860. The court stated that "[i]f a party wants to challenge the legal sufficiency of a complaint, the proper procedural vehicle is the motion to strike. Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency `shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.' Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted. . . . [A] motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and . . . Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Id., 861.
Like the motion in Stuart, the motion to strike and the so-called "amended" motion to strike in the present case fail to set forth separately each claim of insufficiency and fail to specify distinctly the reasons for each claimed insufficiency. Simply stating that the allegations of the complaint and prayer for relief "are legally insufficient" and that the complaint fails to set forth a legally sufficient cause of action against either defendant cannot be considered compliance with Practice Book § 10-41. The complaint is in two counts, and the defendants give multiple reasons for their challenge to the causes of action as alleged by the Commission in their memorandum of law in support of the motion. As the Appellate Court stated in Stuart, "[t]hose reasons, however, were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered `fatally defective.'" Stuart v. Freiberg, supra, 102 Conn. App. 862.
Accordingly, because the defendants' motion fails to set forth each claim of insufficiency and fails to specify the grounds of insufficiency as required by Practice Book § 10-41, the motion to strike is denied.
It is so ORDERED.