Opinion
No. CV 07 5002929
October 2, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #135
This is an action to foreclose a judgment lien. The plaintiff, Lienfactors, LLC, filed its complaint against the defendant, Frank Crandall, on February 28, 2007. The defendant filed his answer and special defenses on August 7, 2007. On May 19, 2008, the defendant filed a "claim of homestead exemption." On May 21, 2008, the plaintiff filed a motion to strike the defendant's claim of homestead exemption on the ground that the claim is improper in a foreclosure action and is a dilatory tactic aimed at delaying and interfering with the foreclosure action. On June 9, 2008, the defendant flied a memorandum of law in opposition.
In its complaint, the plaintiff alleges, inter alia, the following facts. On December 21, 2006, John Nazzaro obtained a judgment in his favor against the defendant in the amount of $45,403.30 including costs and interest. On January 9, 2007, Nazzaro filed a judgment lien on the Waterford Land records against the plaintiff's property located at 7 David Street in Waterford. On January 24, 2007, Nazzaro assigned all of his rights, title and interest in the judgment and the lien to the plaintiff. The judgment remains unpaid and there is presently due to the plaintiff the sum of $46,831.45 plus interest, reasonable attorneys fees and costs for the prosecution of this action.
The pleadings that can be stricken using a motion to strike are clearly enumerated in Practice Book § 10-39. Practice Book § 10-39 provides in relevant part:
(a) 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 thereon to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof . . .
"Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995); see also Hatt v. Burlington Coat Factory, 263 Conn. 279, 295, 819 A.2d 260 (2003) (applying `tenet of statutory construction known as expressio unius est exclusio alterius, translated as the expression of one thing is the exclusion of another' . . .). "[T]he rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted.) Zhirinsky v. Zhirinsky, 87 Conn.App. 257, 269, 865 A.2d 257, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). A claim of homestead exemption is not enumerated among the items to be stricken by a motion to strike. Practice Book § 10-39. Therefore, the motion to strike cannot be used to strike a claim of homestead exemption.
For the foregoing reasons, the plaintiff's motion to strike #135 is denied.