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Zimmitti v. Netherland

Superior Court of Connecticut, Judicial District of New Haven, Meriden

October 27, 2015

Paul R. Zimmitti
v.
James M. Netherland et al

MEMORANDUM OF DECISION RE MOTION TO STRIKE #122 and #123

Jack W. Fischer, Judge.

FACTS

This case arises from a confrontation between the driver of one motor vehicle and the driver and passenger of another motor vehicle that occurred on or about April 25, 2011. On March 5, 2013, the plaintiff, Paul Zimmitti (Zimmitti), commenced this action by service of process on the defendants, James Netherland, Nicole Netherland, Daniel Difazio, and Thomas Difazio. On February 18, 2015, the co-defendants James Netherland and Nicole Netherland filed an answer and special defense alleging that Zimmitti's damages were actually and proximately caused by his own negligence and/or recklessness in that the plaintiff engaged in a course of conduct, including taunting, which led to a confrontation between the co-defendants in a parking lot. That confrontation resulted, in part, in an assault by Daniel Difazio (Difazio) upon James Netherland (Netherland).

On May 22, 2015, Netherland filed a revised cross claim and counterclaim alleging the following facts. In the evening of April 25, 2011, Netherland was operating a motor vehicle on a public highway. That same evening, Difazio was operating a motor vehicle upon the same highway. Zimmitti was a passenger in the Difazio vehicle. As Netherland was traveling northbound, Difazio turned from a parking lot and into Netherland's path on the highway, forcing Netherland to jam on his breaks and swerve to avoid colliding with Difazio.

Following that, Difazio slowed his vehicle and motioned for Netherland to pass in front of him. Thereafter, Difazio proceeded to tailgate Netherland, causing Netherland to slow his vehicle to a stop in the breakdown lane of the highway. Difazio also slowed to a stop, at which point Zimmitti jumped out of the Difazio vehicle and uttered and made threatening gestures towards Netherland.

Netherland, seeking to avoid further confrontation, drove his vehicle around Difazio's vehicle and into a nearby parking lot. Difazio followed Netherland into the parking lot and parked in front of Netherland's vehicle. Without warning, Difazio jumped from his vehicle, approached Netherland's vehicle, and struck Netherland in his mouth, causing him to sustain injuries. At all times, Zimmitti acted in concert with Difazio, resulting in Netherland's injuries.

Count One is a cross claim directed towards Difazio. On May 26, 2015, Difazio filed a motion to strike the cross claim (#122), along with a supporting memorandum of law. Netherland filed an objection to Difazio's motion on July 8, 2015.

Count Two is a counterclaim directed towards Zimmitti. On June 5, 2015, Zimmitti filed a motion to strike the counterclaim (#123), along with a supporting memorandum of law. Netherland filed an objection to Zimmitti's motion on July 24, 2015.

Arguments concerning both motions were heard at the short calendar on July 27, 2015.

DISCUSSION

" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . 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. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and tecnically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

I

Difazio's Motion to Strike #122

In the motion to strike the cross claim, Difazio argues that Netherland's cross claim is not timely filed because the alleged injuries occurred on April 25, 2011, and the cross claim was initially filed on February 20, 2015. Therefore, Difazio argues that the two-year statute of limitations ...


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