Opinion
No. CV-09-5006230-S
October 26, 2010
RULING ON MOTION TO STRIKE (document number 129.00)
In this matter, construing the pleadings in the light most favorable to the plaintiff (see, Amodio v. Cunningham, 182 Conn. 80 (1980)), in a complaint dated January 30, 2009, the plaintiff alleges he was on or about February 7, 2007, injured after falling on an accumulation of ice and snow on property allegedly owned by the defendant, Peppermill Village Condominium Association, Inc. (Peppermill) which property was allegedly managed by the defendant, Elite Property Management, LLC (Elite). The complaint was filed on February 13, 2009. Peppermill and Elite moved to implead the movant, Readco Management, LLC (Readco), as a third-party defendant. That motion was granted and on August 3, 2009, Peppermill and Elite filed a third-party complaint dated July 30, 2009, naming Readco as a third-party defendant. Readco was served with the third-party complaint on July 29, 2009. Counsel for Readco filed an appearance on October 28, 2009.
On December 22, 2009, the plaintiff requested leave to amend the complaint to add a third count naming Readco as a defendant The court, over Readco's objection, permitted the plaintiff to amend the complaint.
Readco has moved to strike the third count of the amended complaint on the grounds that the plaintiff's claims are barred by the statute of limitations.
Discussion:
The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief may be granted." (Internal quotations omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn 269, 270 (1998). Because a motion to strike contests the legal sufficiency of a pleading, it requires no factual findings by the trial court. See, Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771 (2002).
The plaintiff, in its motion to strike, recites Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 171-72 (1956), for the proposition that ordinarily, "[a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . . In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statutes of limitations. The first is when `[t]he parties agree that the complaint sets forth all of the facts pertinent to the question whether the action is barred by the Statute of Limitations, and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.'" (The second situation addressed in Vilcinskas is inapposite to the instant matter and therefore not addressed herein.)
The statute of limitations for negligence, General Statutes § 52-584, provides that "[n]o action to recover damages for injury to the person caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
Sec. 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice.
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Viewing the pleadings in the light most favorable to the plaintiff, it is clear that the amended complaint dated December 22, 2009 and further amended by complaint dated May 11, 2010 and filed May 12, 2010 naming Readco as a defendant was brought and served on the defendant more than two years after the date on which the plaintiff alleges he injured himself on accumulated snow and ice at the property owned by Peppermill. For purposes of the statute of limitations, "an action is deemed to be commenced on the date service is made on the defendant." Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 729 (1999).
The plaintiff, however, argues the two-year statute of limitations did not begin to run until the plaintiff learned that Readco may have been responsible for his injuries. The plaintiff claims, in reliance on Tarnowsky v. Socci, 271 Conn. 284 (2004), the two year statute of limitations did not run until the plaintiff knew or should have known the identity of the alleged tortfeasor and the plaintiff did not know nor reasonably should have known of Readco's role as the contractor for the defendants Peppermill and Elite until such time as the defendant's filed the third-party complaint against Readco. In Tarnowsky, the Supreme Court held "the two year statute of limitations set forth in § 52-584 does not begin to run until the plaintiff knows, or reasonably should have known, the identity of the tortfeasor . . . When the plaintiff . . . knew or should have known the defendant's identity is a question to be determined by the fact finder . . ." Id., 297.
As the issue before the court in the motion to strike is the legal sufficiency of the pleadings, the court is limited to the facts alleged in the pleadings. See Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). In this matter, the pleadings do not support the claim made by Readco in its supplemental brief and in oral argument, that the plaintiff knew or should have known the identity of Readco prior to the date of the filing of the third party complaint. The court will not consider factual allegations raised outside the pleadings. See, Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, (1990); Bulkley v. Norwich W.R. Co., 81 Conn. 284, 286 (1908).
The plaintiff further argues the defendant Readco was served within the separate three-year time limit also set forth in General Statutes § 52-284. This three-year period commences when the allegedly negligent acts or omissions occur, regardless of whether the plaintiff knows of the identity of the alleged tortfeasor; Tarnowsky v. Socci, supra, 271 Conn. 297; or when the actual injury occurs or is discovered. Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 (2000).
Readco, in its pleadings, has not disclosed any evidence that the allegedly negligent acts of Readco occurred more than three years prior to the service of the amended complaint on Readco.
Accordingly, for all of the reasons set forth above, the motion to strike is denied.
It is so ordered.