[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]ORDER re DEFENDANTS MOTION TO STRIKE #105 The defendants move to strike certain paragraphs of the plaintiff's complaint on the basis that they are time barred by the applicable statute of limitations. CT Page 4255-FFFF
"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. . . . The advantage of the statute of limitations cannot be taken by [a motion to strike]. . . ." (Citations omitted; internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn. App. 235,239 624 A.2d 389 (1993).
A motion to strike might . . . deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense. . . . In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations. The first is when the parties agree that the complaint sets forth all 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 is where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of liability itself as created, and not of the remedy alone.
(Citations omitted; internal quotation marks omitted.) Id., 239-40.
Where the parties agree that all facts necessary to the determination of whether the statute of limitations applies are set forth in the complaint, "there [is] no need to wait for an answer to determine if the statute of limitations defense could be avoided if the answer could provide no new information." Id., 240.
In the present case, neither side claims that situation number two applies. The court's review of the file indicates that situation number one also does not apply — since the parties have not agreed on all the facts necessary to determine whether the statute of limitations defense bars the plaintiff's claims.
Therefore, the defense of the statute of limitations defense must be specifically pleaded. The motion to strike is denied.
LAWRENCE L. HAUSER, JUDGE CT Page 4255-GGGG