Summary
finding plaintiff alleged a claim under CUTPA where landlord continued to collect rent despite failure to keep common areas of the premises in safe condition
Summary of this case from Parris v. PappasOpinion
No. CV 05-5000502
November 22, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE SECOND AND THIRD COUNTS OF REVISED COMPLAINT
On July 22, 2003 the defendants, Sylvester Rebeiro and Robert Rebeiro, owning a multi-unit tenement house at 30 Wayland Street in Hartford, leased a residential apartment to the plaintiff Poolnauth Hiraprashad. At that time the plaintiff was injured after falling on an inadequately lighted common stairway of the tenement house. The plaintiff has filed a three-count revised complaint against both defendants.
The first count of this complaint alleges that the defendants were negligent in maintaining a common stairway. The second count alleges a private nuisance and the third count alleges a violation of the Connecticut Unfair Trade Practiced Act i.e. CUTPA. The defendants have moved to strike the second and third counts of the revised complaint on the basis that the plaintiff has failed to state a claim in either private nuisance or CUTPA. The defendants filed a memorandum of law with their motion to strike and the plaintiffs have filed a memorandum of law in opposition to the motion to strike.
"[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992); see also In re Michael D., 58 Conn.App. 119, 122, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).
"The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580.
"[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
The defendants contend that the court should apply the four-factor analysis articulated in the cases of Filisko v. Bridgeport Hydraulic Company, 176 Conn. 33 (1978) and Costyal v. Cass, 163 Conn. 92 (1972), Heiling v. LeQuire, 4 Conn.App. (1985) and State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177 (1987). In relying on this line of cases the defendants have ignored and failed to point out the Connecticut Supreme Court's decision in Pestey v. Cushman, 259 Conn. 345 (2002). In this case the Supreme Court criticized the application of the four-factor analysis to private nuisance actions and reexamined and clarified the elements that a plaintiff must prove to prevail on a claim for damages for private nuisance. The court adopted the basic principals of Section 822 of the Restatement (2nd) of Torts and has formulated the following standards: (1) that there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) that the defendants' conduct was the proximate cause of the invasion; and (3) that the invasion was either intentional and unreasonable or unintentional and that the defendants' conduct was negligent or reckless.
In the opinion of this court, the plaintiffs have alleged in the second count of their revised complaint sufficient facts which, if credited by the jury, would meet the elements of a private nuisance cause of action under the standard articulated in Pestey v. Cushman. Accordingly, the defendants' motion to strike the second count is denied.
With respect to the third count which sounds in CUTPA, the defendants maintain that as a matter of law the plaintiff lacked the business relationship with the defendants that is required for a CUTPA claim. In addition, the defendants claim that they did not commit any unfair or deceptive acts or practices as required under Section 42-110b. To sustain a claim under CUTPA a plaintiff must allege that the actions of the defendants were performed in the conduct of "a trade or commerce." Conn. Gen. Stat. § 42-110b; Quimby v. Kimberly Clark Corporation, 28 Conn.App. 660, 669 (1992). Conn. Gen. Stat. § 42-110a(4) defines "trade" or "commerce" to include "the sale or rent or lease . . . of any . . . real, personal or mixed . . . property." Paragraph 2 of the third count alleges that the defendants leased to the plaintiff a residential apartment unit at 30 Wayland Street in Hartford, Connecticut. Paragraph 3 of the third count alleges that the defendants were "engaged in the conduct of a trade or commerce in the state of Connecticut, namely the leasing of residential apartment units." Thus, the plaintiff has sufficiently plead that a landlord/tenant "business relationship" existed and that the defendants were engaged in a "trade or commerce" as required for a CUTPA claim. In Conaway v. Prestia, 191 Conn. 484, 493 (1983) our Supreme Court held that a landlord's violation of the standards of safety and habitability set forth in the landlord and tenant statutes offends public policy and amounts to an unfair act or practice in violation of CUTPA. In addition several Superior Court decisions have determined that a personal injury action based on a landlord's failure to maintain legal property in violation of landlord/tenant statutes amounts to a CUTPA violation.
The plaintiff has alleged in the third count, paragraph 7, that the defendants were in violation of Section 47a-4a of the Connecticut General Statutes and collected rent from him despite their failure to comply with their obligations under Section 47a-7(a); also, that the defendants failed to keep all common areas of the premises in safe condition and failed to adequately light the common areas of the premises in violation of Section 18-97 of the Hartford Housing Code. CUTPA prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. § 42-110b(a). The Connecticut Supreme Court has adopted the cigarette rule of the Federal Trade Commission in determining whether an act or practice is unfair. The cigarette rule has three factors: (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, at common law, or otherwise; (2) whether it is immoral, unethical, oppressive or unscrupulous; and (3) whether it causes substantial injury to consumers, competitors or other businessmen. Webb Press Service Corp. v. New London Motors, 203 Conn. 342, 355 (1987); Conaway v. Prestia, 191 Conn. 484, 492-93 (1983). All three elements of the "cigarette rule" do not have to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets at least one of the criteria or because to a lesser extent it meets all three. Fink v. Goldenbock, 238 Conn. 183 (1996); Yellow Springs Condominium Association, Inc. v. Seventh B.R.T., Dev. Corp., 245 Conn. 1, 43 (1998).
In the opinion of this court the plaintiff has alleged sufficient facts to support a claim of "unfair or deceptive acts or practices" that is cognizable under CUTPA. Accordingly, the motion to strike the third count of the revised complaint is denied.