first special defense in Connecticut

2003Accordingly, they contend that the plaintiff should be estopped from pursuing this action pursuant to promissory and equitable estoppel and its own breach of confidentiality and/or fraud. `The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates , 244 Conn. 269 , 270 , 709 A.2d 558 (1998). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1

2003Accordingly, they contend that the plaintiff should be estopped from pursuing this action pursuant to promissory and equitable estoppel and its own breach of confidentiality and/or fraud. `The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates , 244 Conn. 269 , 270 , 709 A.2d 558 (1998). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1

2001It is based on the legal principal that "equity abhors a forfeiture." "Equitable principals barring forfeitures may apply to summary process actions for nonpayment of rent if (1) the tenant's breach is not wilful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury of the landlord; and (3) the landlord's injury is reparable." Fellows v. Martin, supra. Connecticut's appellate courts were previously unwilling to apply the doctrine of equitable non-forfeiture in situations involving the nonpayment of rent.

1995In Cumberland Farms Inc. v. Dairy Mart, Inc., 225 Conn. 771 , 777 (1993), the Supreme Court reaffirmed its holding in Fellows v. Martin, 217 Conn. 57 , 62-63 (1991), and said "[e]quitable defenses and counterclaims implicating the right to possession are available in summary process actions." Accordingly, the court finds that the first special defense is properly before this court.

1998State National Bank v. Dick , 164 Conn. 523 , 529 (1973); Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , cert. denied, 217 Conn. 811 (1991).

1995Second, citing State National Bank v. Dick , 164 Conn. 523 , 529 , 325 A.2d 235 (1979) and Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , 583 A.2d 1311 , cert. denied, 217 Conn. 811 , 587 A.2d 153 (1991), Union Trust argues that a modification of an agreement requires valid consideration.

2001The court relied on a footnote in Robert S. Weiss Associates v. Wiederlight , 208 Conn. 525 , 535 n. 5, 546 A.2d 216 (1988).

2001The court relied on a footnote in Robert S. Weiss Associates v. Wiederlight , 208 Conn. 525 , 535 n. 5, 546 A.2d 216 (1988).

2001See also Schereschewsky v. Lynch , Superior Court, judicial district of Litchfield, Docket No. 052140 (January 2, 1991, Pickett, J .) (in a negligence action, in which the plaintiff was a passenger in a car driven by the defendant when the car was involved in a one car collision, the court struck the defendant's first special defense of assumption of the risk because "this defense has been abolished under Connecticut law. [General Statutes §] 52-572h (1)."); Passini v. Decker , 39 Conn. Sup. 20 , 21 , 25-27, 467 A.2d 442 (1983) (motion to strike the special defense alleging that "[a]ny alcohol

2001See also Schereschewsky v. Lynch , Superior Court, judicial district of Litchfield, Docket No. 052140 (January 2, 1991, Pickett, J .) (in a negligence action, in which the plaintiff was a passenger in a car driven by the defendant when the car was involved in a one car collision, the court struck the defendant's first special defense of assumption of the risk because "this defense has been abolished under Connecticut law. [General Statutes §] 52-572h (1)."); Passini v. Decker , 39 Conn. Sup. 20 , 21 , 25-27, 467 A.2d 442 (1983) (motion to strike the special defense alleging that "[a]ny alcohol

2000"Fraud in the inducement to enter a contract is a well established equitable defense." Connecticut National Bank v. Voog, 233 Conn. 352 , 367 , 659 A.2d 172 (1995).

2000"Fraud in the inducement to enter a contract is a well established equitable defense." Connecticut National Bank v. Voog, 233 Conn. 352 , 367 , 659 A.2d 172 (1995).

1998Mingachos v. CBS, Inc., 196 Conn. 91 , 108 , 491 A.2d 368 (1985); Practice Book § 152, now Practice Book (1998 Rev.) § 10-39 . "[A] counterclaim is a cause of action existing in favor of the defendant and against the plaintiff and CT Page 11609 on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . .

1998Mingachos v. CBS, Inc., 196 Conn. 91 , 108 , 491 A.2d 368 (1985); Practice Book § 152, now Practice Book (1998 Rev.) § 10-39 . "[A] counterclaim is a cause of action existing in favor of the defendant and against the plaintiff and CT Page 11609 on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . .

1998State National Bank v. Dick , 164 Conn. 523 , 529 (1973); Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , cert. denied, 217 Conn. 811 (1991).

1995Second, citing State National Bank v. Dick , 164 Conn. 523 , 529 , 325 A.2d 235 (1979) and Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , 583 A.2d 1311 , cert. denied, 217 Conn. 811 , 587 A.2d 153 (1991), Union Trust argues that a modification of an agreement requires valid consideration.

1998State National Bank v. Dick , 164 Conn. 523 , 529 (1973); Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , cert. denied, 217 Conn. 811 (1991).

1995Second, citing State National Bank v. Dick , 164 Conn. 523 , 529 , 325 A.2d 235 (1979) and Thermoglaze, Inc. v. Morningside Gardens Co. , 23 Conn. App. 741 , 745 , 583 A.2d 1311 , cert. denied, 217 Conn. 811 , 587 A.2d 153 (1991), Union Trust argues that a modification of an agreement requires valid consideration.

1997II CT Page 10323 The defendant's first special defense alleges: "The premises contain numerous housing code violations." "In the absence of a statute or covenant to the contrary, the lessor does not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the lessee." Thomas v. Roper, 162 Conn. 343 , 348 , 294 A.2d 321 (1972); see Ciavaglia v. Bolles, 38 Conn. Sup. 603 , 605 , 457 A.2d 669 (1982).

1997II CT Page 10323 The defendant's first special defense alleges: "The premises contain numerous housing code violations." "In the absence of a statute or covenant to the contrary, the lessor does not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the lessee." Thomas v. Roper, 162 Conn. 343 , 348 , 294 A.2d 321 (1972); see Ciavaglia v. Bolles, 38 Conn. Sup. 603 , 605 , 457 A.2d 669 (1982).

1992See also Practice Book 141, which provides that a document annexed to a pleading becomes "a part of" the pleading; Warner v. Konover, 210 Conn. 150 , 553 A.2d 1138 (1989) (In overturning the trial court's action of granting a motion to strike, the Supreme Court considered the terms of a lease which was attached to the complaint.) Both the first special defense and the first count of the counterclaim arise out of the alleged "implicit and/or explicit" representation of the plaintiffs with respect to the condominium unit and the common areas.

1992See also Practice Book 141, which provides that a document annexed to a pleading becomes "a part of" the pleading; Warner v. Konover, 210 Conn. 150 , 553 A.2d 1138 (1989) (In overturning the trial court's action of granting a motion to strike, the Supreme Court considered the terms of a lease which was attached to the complaint.) Both the first special defense and the first count of the counterclaim arise out of the alleged "implicit and/or explicit" representation of the plaintiffs with respect to the condominium unit and the common areas.

1995The purpose of a motion to strike "is to test the legal sufficiency of the pleadings." Ferryman v. City of Groton, 212 Conn. 138 , 142 , 561 A.2d 432 (1989).

1995The purpose of a motion to strike "is to test the legal sufficiency of the pleadings." Ferryman v. City of Groton, 212 Conn. 138 , 142 , 561 A.2d 432 (1989).

1995The second CT Page 12967 special defense merely alleges a legal conclusion that those same alleged facts show that the plaintiff town cannot seek equitable relief because it has "unclean hands." "Application of the doctrine of unclean hands rests with the sound discretion of the trial court." A B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573 , 578 , 456 A.2d 1187 (1983).

1995The second CT Page 12967 special defense merely alleges a legal conclusion that those same alleged facts show that the plaintiff town cannot seek equitable relief because it has "unclean hands." "Application of the doctrine of unclean hands rests with the sound discretion of the trial court." A B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573 , 578 , 456 A.2d 1187 (1983).

1994Defendants' First Special Defense The defendants' first special defense alleges merely that are void because the plaintiff fraudulently induced the defendant to borrow money from the plaintiff. "[T]he legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Assn. v. Eastern Associates , 3 Conn. App. 582 , 586 , 491 A.2d 401 (1985), citing McAdam v. Sheldon , 153 Conn. 278 , 283 , 216 A.2d 193 (1965). "[T]he mere allegation that a fraud has been CT Page 5388 perpetrated is insuffic

1994Defendants' First Special Defense The defendants' first special defense alleges merely that are void because the plaintiff fraudulently induced the defendant to borrow money from the plaintiff. "[T]he legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Assn. v. Eastern Associates , 3 Conn. App. 582 , 586 , 491 A.2d 401 (1985), citing McAdam v. Sheldon , 153 Conn. 278 , 283 , 216 A.2d 193 (1965). "[T]he mere allegation that a fraud has been CT Page 5388 perpetrated is insuffic

1994Connecticut has recognized the following defenses to an action for a foreclosure of a mortgage: usury, Bizzoco v. Chintz, 193 Conn. 304 , 309 , 476 A.2d 572 (1984); unconscionability of interest rate; Hamm v. Taylor, 180 Conn. 491 , 495 , 429 A.2d 946 (1980); duress or coercion and material CT Page 3809 alteration, Second New Haven Bank v. Quinn, 1 Conn. App. 78 , 79 , 467 A.2d 1252 (1983); payment, Connecticut Bank and Trust Company v. Dadi, 182 Conn. 530 , 532 , 438 A.2d 733 (1980); discharge, Guaranty Bank Trust Co. v. Darling, 4 Conn. App. 376 , 380 , 494 A.2d 1216 (1985); fraud in the fac

1994Connecticut has recognized the following defenses to an action for a foreclosure of a mortgage: usury, Bizzoco v. Chintz, 193 Conn. 304 , 309 , 476 A.2d 572 (1984); unconscionability of interest rate; Hamm v. Taylor, 180 Conn. 491 , 495 , 429 A.2d 946 (1980); duress or coercion and material CT Page 3809 alteration, Second New Haven Bank v. Quinn, 1 Conn. App. 78 , 79 , 467 A.2d 1252 (1983); payment, Connecticut Bank and Trust Company v. Dadi, 182 Conn. 530 , 532 , 438 A.2d 733 (1980); discharge, Guaranty Bank Trust Co. v. Darling, 4 Conn. App. 376 , 380 , 494 A.2d 1216 (1985); fraud in the fac

1993A party's motion for summary judgment is "properly granted if it raises at least one legally sufficient defense that would bar the [opposing party's] claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529 , 543 , 494 A.2d 555 (1985). [*4] Crown High claims to have shown that there is no genuine issue of material fact with respect to those facts necessary to entitle it to summary judgment on the first special defense.

1993A party's motion for summary judgment is "properly granted if it raises at least one legally sufficient defense that would bar the [opposing party's] claim and involves no triable issue of fact." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529 , 543 , 494 A.2d 555 (1985). [*4] Crown High claims to have shown that there is no genuine issue of material fact with respect to those facts necessary to entitle it to summary judgment on the first special defense.

2022The first special defense set forth distinct allegations as to each count. 6 The court also determined that, insofar as the defendants had moved for summary judgment on the first and third counts of the plaintiff’s amended complaint, which had been withdrawn, the defendants’ cross motion for summary judgment was moot. 7 Specifically, the court ruled that the plaintiff had a prescriptive easement over (1) the full width of the entire alleyway and (2) a ten foot path in the portion of the paved area behind 210 Atlantic Street and 234 Atlantic Street that continued through the portion of the pave

2021General Statutes §§ 49-31l (c) (6) and 49-31n (c) (9).’’ U.S. Bank National Assn. v. Blowers, 332 Conn. 656 , 677–78 n.17, 212 A.3d 226 (2019). 6 Ocwen’s motion to substitute suggests that the defendants’ earlier attempt to obtain revisions regarding the identity of the holder of the note was more than appropriate. 7 The first special defense asserted unclean hands premised on Nationstar or intervening holders of the note having knowingly presented false docu- ments to the court.

2021General Statutes §§ 49-31l (c) (6) and 49-31n (c) (9).’’ U.S. Bank National Assn. v. Blowers, 332 Conn. 656 , 677–78 n.17, 212 A.3d 226 (2019). 6 Ocwen’s motion to substitute suggests that the defendants’ earlier attempt to obtain revisions regarding the identity of the holder of the note was more than appropriate. 7 The first special defense asserted unclean hands premised on Nationstar or intervening holders of the note having knowingly presented false docu- ments to the court.

2020The court also addressed the defendants’ remaining special defenses and found that they were unavailing.10 Having found against the defendants with respect to the remainder of their special defenses, the court stated that it need not consider the legal issues raised by the plaintiff by way of avoidance and turned its attention to the plaintiff’s remedy.11 Noting again that a trial court has ‘‘wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete’’; England v. Coventry, 183 Conn. 362, 365

2020The court also addressed the defendants’ remaining special defenses and found that they were unavailing.10 Having found against the defendants with respect to the remainder of their special defenses, the court stated that it need not consider the legal issues raised by the plaintiff by way of avoidance and turned its attention to the plaintiff’s remedy.11 Noting again that a trial court has ‘‘wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete’’; England v. Coventry, 183 Conn. 362, 365

2004General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” Section 52-556 “creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.” Rivera v. Fox, 20 Conn. App. 619, 622 , 569 A.2d 1137 , cert. denied, 215 Conn. 808 , 576 A.2d 538 (1990).

2004General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” Section 52-556 “creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.” Rivera v. Fox, 20 Conn. App. 619, 622 , 569 A.2d 1137 , cert. denied, 215 Conn. 808 , 576 A.2d 538 (1990).

2004General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” Section 52-556 “creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.” Rivera v. Fox, 20 Conn. App. 619, 622 , 569 A.2d 1137 , cert. denied, 215 Conn. 808 , 576 A.2d 538 (1990).

2004General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” Section 52-556 “creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.” Rivera v. Fox, 20 Conn. App. 619, 622 , 569 A.2d 1137 , cert. denied, 215 Conn. 808 , 576 A.2d 538 (1990).

2004The [trial] court concluded that the plaintiff had violated rule 1.8 and the public policy underlying that rule [and thus found that the note and mortgage were unenforceable].” Id., 482-83 .

2003Accordingly, they contend that the plaintiff should be estopped from pursuing this action pursuant to promissory and equitable estoppel and its own breach of confidentiality and/or fraud. `The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates , 244 Conn. 269 , 270 , 709 A.2d 558 (1998). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1

2003Accordingly, they contend that the plaintiff should be estopped from pursuing this action pursuant to promissory and equitable estoppel and its own breach of confidentiality and/or fraud. `The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates , 244 Conn. 269 , 270 , 709 A.2d 558 (1998). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak , 175 Conn. 112 , 116 , 394 A.2d 716 (1

2003Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District , 160 Conn. 446 , 450 .

2003Inherent Danger and Assumption of Risk The plaintiffs' motion also challenges the court's charge on Connecticut's inherent danger statute, General Statutes § 29-212 , which provides that "[e]ach skier shall assume the risk of and legal responsibility for any injury to his person or property arising out of the hazards inherent in the sport of skiing, unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or employees." They also seek to set aside the verdict for "charging assumption of risk not in accordance with Greene v. DiFazi

2002Turning to the specific special defenses, the first special defense, based upon the plaintiff failing to appraise the subject property accurately, has been rejected by the Appellate Court in Dukinsky v. Citicorp Mortgage, Inc. , 48 Conn. App. 52 (1998). that case, the court noted that the relationship between a potential lender and mortgage loan applicant does not impose on the mortgagee a duty owed to the applicant to perform an accurate appraisal of the property.

2002It concludes a mortgagee has no common law duty to perform the appraisal with reasonable care." 48 Conn. App. at 58 .