Opinion
No. CV-05-4013892S
April 11, 2006
RULING ON DEFENDANT'S MOTION TO STRIKE
I
In this case the defendant, Ann Maffucci, acting individually and as trustee of property at 95 Stillwood Drive in Wethersfield, sold the property to the plaintiff, Karen Belanger. The Plaintiff alleges she later discovered extensive mold damage throughout the basement of the house. In her fourth count, the plaintiff claims that the defendant acted in violation of the Connecticut Unfair Trade Practices Act, (CUTPA), General Statutes Section 42-110a et seq. The plaintiff does not allege that the defendant is in the business or trade of selling real estate. The defendant has moved to strike the fourth count, claiming that CUTPA is inapplicable to a single sale of a residential dwelling.
II
A motion to strike contests the legal sufficiency of a plaintiff's claims. Faulkner v. United Tech. Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the complaints, construed in favor of the plaintiffs, to determine whether the plaintiffs have stated a legally sufficient of action." Napoletano v. CIGNA Healthcare, 238 Conn. 216, 223-33, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997). The reviewing court must assume that the facts alleged in the complaint are true. See Waters v. Autuori, 236 Conn. 820, 825-26, 676 A.2d 357 (1996).
III
No Connecticut appellate court has definitively ruled on whether a one-time sale of real estate from an individual not engaged in the business of real estate falls under the ambit of CUTPA. The parties acknowledge a split among the superior court judges as to whether a single incident, and in particular, a single sale of a residential dwelling may be the subject of a CUTPA claim. However, this court agrees with the majority of superior court judges who have held that such actions do not fall under CUTPA. Although a single transaction may be the proper subject of a CUTPA count, the essence of the Act, despite its broad definition of "trade" and "commerce," is its effort to provide a remedy for the unfair practices purpose of an existing or continuing enterprise, not misconduct that might occur in the course of a one-time transaction by a private individual. See Cresceuzo v. Camarota, CV 97-03964333S, Superior Court, judicial district of New Haven at New Haven, Docket No. CV97-03964333S (June 9, 1997, Silbert, J.) ( 19 Conn. L. Rptr. 611); Piantidosi v. MacGarvey, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 99-0174606S, (May 26, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 252); Perugini v. Simo-Kinzer, Superior Court, judicial district of Waterbury, Docket No. CV 03-0180724S, (February 2, 2004, Alvord, J.) ( 36 Conn. L. Rptr. 489); Kaplan v. Nuzzo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 05-4013335, (November 9, 2005, Silbert, J.) ( 40 Conn. L. Rptr. 246); See also McCann Real Equities Series XXII, LLC et al. v. David McDermott Chevrolet, Inc. et al., 93 Conn.App. 486, 519-23, 890 A.2d 140 (2006) (holding that a verdict was properly directed in favor of defendant auto dealership which incidentally sold real estate because the defendant was not engaged in the business of selling real estate).
Accordingly, the motion to strike Count Four of the plaintiff's complaint is hereby granted.