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In Goldstein v. Rapp, No. CV104010224, 2010 WL 4353474 (Conn.Super.Ct. Oct. 15, 2010), the trial court, relying on Myers, struck a claim for negligent infliction of emotional distress based on facts similar to those in the present case.
Summary of this case from Mendez v. JPmorgan Chase Bank, N.A.Opinion
No. CV 10-4010224
October 15, 2010
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE [#107]
I. FACTS
On April 28, 2010, the plaintiffs, Jacqueline Goldstein and Jamain Pabon, filed a four-count complaint against the defendants, Douglas A. Rapp, Jr., Deutsche Bank National Trust Company (Deutsche Bank) and Old Republic Title Company (Old Republic) alleging claims for a violation of the entry and detainer statute, General Statutes § 46a-43, statutory theft pursuant to General Statutes § 52-564, negligent infliction of emotional distress and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., respectively. In their complaint, the plaintiffs allege the following facts. In July 2008, the plaintiffs took possession of the premises located at 32 Kings Highway in Ledyard, Connecticut (the premises). The plaintiffs entered into a written lease to occupy the premises that expired on September 20, 2009. Deutsche Bank initiated an action to foreclose a mortgage on the premises sometime prior to August 2009, and obtained title to the premises pursuant to the foreclosure action. In August 2009, while the plaintiffs were still entitled to possession of the premises pursuant to the terms of the lease, Old Republic and the defendant, acting on behalf of Deutsche Bank, installed a lock box on the premises, thereby preventing the plaintiffs from gaining access to the premises. At some point during the first two weeks of August 2009, Deutsche Bank, Old Republic and the defendant removed all of the plaintiffs' personal possessions from the premises, including mementos, family photographs and a jar containing the cremated remains of Goldstein's father, which they have refused to return despite the plaintiffs' demands therefor.
Deutsche Bank and Old Republic are not parties to the present motion. Hereinafter, the term the defendant refers to Rapp, individually.
On July 12, 2010, the defendant filed a motion to strike counts one and three of the plaintiffs' complaint on the grounds that count one is time barred pursuant to the applicable statute of limitations, and count three fails to state a legally sufficient cause of action. The plaintiffs filed an objection to the defendant's motion on July 16, 2010.
II. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "It 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The court must construe the facts in the complaint most favorably to the plaintiff." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
A. Count One — Entry and Detainer
The defendant first argues that count one of the plaintiffs' complaint should be stricken on the grounds that a claim for entry and detainer pursuant to § 46a-43 is barred by the statute of limitations period provided in General Statutes § 52-589. The plaintiffs counter that the defendant's motion should be denied because count one also alleges facts supporting a cause of action for common-law trespass and conversion. The plaintiffs further counter that § 52-589 is not the applicable statute of limitations because the statute applies only to a claim for forcible entry and detainer, and the plaintiffs have not alleged that the entry and detainer in the present case was forcible.
General Statutes § 52-589 provides: "No complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of."
In Dudley v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 04 4000078 (January 20, 2005, Tanzer, J.), the court denied the defendants' motion to strike the plaintiff's claim for entry and detainer pursuant to § 47a-43 on the grounds that, when construed in a manner most favorable to sustaining its legal sufficiency, the allegations contained in the claim supported a cause of action for conversion. "The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
In the present case, the first count of the plaintiffs' complaint alleges that while the plaintiffs were still entitled to occupy the premises, the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, and failed to return the property despite the plaintiffs' demand therefor. In light of the foregoing case law, and construing the plaintiffs' claim in a manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiffs have alleged sufficient facts to state a claim for conversion. Therefore, the defendant's motion to strike count one must be denied, and as a result, the court need not reach a decision regarding the applicability of the statute of limitations in § 52-589 for forcible entry and detainer.
B. Count Three — Negligent Infliction of Emotional Distress
The defendant also argues that count three of the plaintiffs' complaint should be stricken on the grounds that the state of Connecticut does not recognize a cause of action for negligent infliction of emotional distress stemming from the damage or destruction of personal property. The plaintiffs counter that their claim for negligent infliction for emotional distress is legally sufficient because the plaintiffs' allegations go beyond the mere damage or destruction of personal property.
In order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must plead and prove: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
While there is no direct appellate authority dealing with a claim for negligent infliction of emotional distress where the damage alleged is injury to property, in Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), our Appellate Court noted that "[o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." Id., 402. "The basis of that ruling [in Myers] was that damage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress." Blue v. Renaissance Alliance, Superior Court, judicial district of New Haven, Docket No. CV 05 4001949 (May 12, 2006, Shluger, J.). Furthermore, "[e]very Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property . . . These courts have reasoned that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Williams v. Feely, Superior Court, judicial district of New London, Docket No. CV 05 5000295 (October 2, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 168, 170).
In the present case, the plaintiffs allege in count three that the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, including "mementos, family photos and a jar containing the cremated remains of . . . Goldstein's father." The plaintiffs further allege in count three that the "[defendant's] aforesaid conduct created an unreasonable risk of causing [the] [p]laintiffs' emotional distress," and "[the] [p]laintiffs suffered severe emotional distress as a result . . ." Pursuant to the allegations, the plaintiffs' claim of emotional distress is directly related to property damage, and the court finds that it was not foreseeable to the defendant that his conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm. As a result, even construing the allegations in the plaintiffs' favor, the plaintiffs' claim for negligent infliction of emotional distress cannot withstand a motion to strike. Therefore, the defendant's motion to strike count three on these grounds must be granted.
III. CONCLUSION
Based on the foregoing, the court hereby denies the defendant's motion to strike count one of the plaintiffs' complaint, and hereby grants the defendant's motion to strike count three of the plaintiffs' complaint.
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE [#110]
I. FACTS
On April 28, 2010, the plaintiffs, Jacqueline Goldstein and Jamain Pabon, filed a four-count complaint against the defendants, Douglas A. Rapp, Jr., Deutsche Bank National Trust Company (Deutsche Bank) and Old Republic Title Company (Old Republic) alleging claims for a violation of the entry and detainer statute, General Statutes § 46a-43, statutory theft pursuant to General Statutes § 52-564, negligent infliction of emotional distress and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., respectively. In their complaint, the plaintiffs allege the following facts. In July 2008, the plaintiffs took possession of the premises located at 32 Kings Highway in Ledyard, Connecticut (the premises). The plaintiffs entered into a written lease to occupy the premises that expired on September 20, 2009. Deutsche Bank initiated an action to foreclose a mortgage on the premises sometime prior to August 2009, and obtained title to the premises pursuant to the foreclosure action. In August 2009, while the plaintiffs were still entitled to possession of the premises pursuant to the terms of the lease, the defendant and Rapp, acting on behalf of Deutsche Bank, installed a lock box on the premises, thereby preventing the plaintiffs from gaining access to the premises. At some point during the first two weeks of August 2009, Deutsche Bank, the defendant and Rapp removed all of the plaintiffs' personal possessions from the premises, including mementos, family photographs and a jar containing the cremated remains of Goldstein's father, which they have refused to return despite the plaintiffs' demands therefor.
Rapp and Deutsche Bank are not parties to the present motion. Hereinafter, the term the defendant refers to Old Republic, individually.
On July 19, 2010, the defendant filed a motion to strike count one and its corresponding claim for double damages pursuant to General Statutes § 47a-46, and count three of the plaintiffs' complaint on the grounds that count one is time barred pursuant to the applicable statute of limitations, and count three fails to state a legally sufficient cause of action. The plaintiffs filed an objection to the defendant's motion on August 13, 2010.
II. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "It 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The court must construe the facts in the complaint most favorably to the plaintiff." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
A. Count One — Entry and Detainer
The defendant first argues that count one of the plaintiffs' complaint should be stricken on the grounds that a claim for entry and detainer pursuant to § 46a-43 is barred by the statute of limitations period provided in General Statutes § 52-589. The plaintiffs counter that the defendant's motion should be denied because count one also alleges facts supporting a cause of action for common-law trespass and conversion. The plaintiffs further counter that § 52-589 is not the applicable statute of limitations because the statute applies only to a claim for forcible entry and detainer, and the plaintiffs have not alleged that the entry and detainer in the present case was forcible.
General Statutes § 52-589 provides: "No complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of."
In Dudley v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 04 4000078 (January 20, 2005, Tanzer, J.), the court denied the defendants' motion to strike the plaintiff's claim for entry and detainer pursuant to § 47a-43 on the grounds that, when construed in a manner most favorable to sustaining its legal sufficiency, the allegations contained in the claim supported a cause of action for conversion. "The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
In the present case, the first count of the plaintiffs' complaint alleges that while the plaintiffs were still entitled to occupy the premises, the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, and failed to return the property despite the plaintiffs' demand therefor. In light of the foregoing case law, and construing the plaintiffs' claim in a manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiffs have alleged sufficient facts to state a claim for conversion. Therefore, the defendant's motion to strike count one must be denied, and as a result, the court need not reach a decision regarding the applicability of the statute of limitations in § 52-589 for forcible entry and detainer.
This court concludes, however, that the defendant's motion to strike the plaintiffs' corresponding claim for double damages pursuant to § 47a-46 must be granted because this court has no jurisdiction to entertain such a claim. "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised . . . by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003). "[T]he cause of action for entry and detainer is a creature of statute . . . The statute, therefore, must be narrowly construed and strictly followed." (Citation omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 557, 929 A.2d 316 (2007). To confer jurisdiction on the court over an action for entry and detainer, a plaintiff must follow the procedures set out in § 47a-43. In the present case, there is nothing in the record indicating that the plaintiffs exhibited their complaint to any judge of the Superior Court, or that any Superior Court judge issued a summons to the defendant pursuant to the requirements of § 47a-43. The plaintiffs' failure to follow the statutory procedure deprives this court of jurisdiction over the plaintiffs' claim for relief. Dudley v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 04 4000078 (January 20, 2005, Tanzer, J.). Therefore, the defendant's motion to strike the plaintiffs' claim for double damages pursuant to § 47a-46 is granted as "the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
General Statutes § 47a-46 provides: "The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under [§]47a-43 that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in [§]47a-43.
General Statutes § 47a-43 provides in relevant part: "[T]he party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court . . . Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint . . . Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial."
B. Count Three — Negligent Infliction of Emotional Distress
The defendant also argues that count three of the plaintiffs' complaint should be stricken on the grounds that the state of Connecticut does not recognize a cause of action for negligent infliction of emotional distress stemming from the damage or destruction of personal property. The plaintiffs counter that their claim for negligent infliction for emotional distress is legally sufficient because the plaintiffs' allegations go beyond the mere damage or destruction of personal property.
In order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must plead and prove: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
While there is no direct appellate authority dealing with a claim for negligent infliction of emotional distress where the damage alleged is injury to property, in Myers v Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), our Appellate Court noted that "[o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." Id., 402. "The basis of that ruling [in Myers] was that damage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress." Blue v. Renaissance Alliance, Superior Court, judicial district of New Haven, Docket No. CV 05 4001949 (May 12, 2006, Shluger, J.). Furthermore, "[e]very Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property . . . These courts have reasoned that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Williams v. Feely, Superior Court, judicial district of New London, Docket No. CV 05 5000295 (October 2, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 168, 170).
In the present case, the plaintiffs allege in count three that the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, including "mementos, family photos and a jar containing the cremated remains of . . . Goldstein's father." The plaintiffs further allege in count three that the "[defendant's] aforesaid conduct created an unreasonable risk of causing [the] [p]laintiffs' emotional distress," and "[the] [p]laintiffs suffered severe emotional distress as a result . . ." Pursuant to the allegations, the plaintiffs' claim of emotional distress is directly related to property damage, and the court finds that it was not foreseeable to the defendant that his conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm. As a result, even construing the allegations in the plaintiffs' favor, the plaintiffs' claim for negligent infliction of emotional distress cannot withstand a motion to strike. Therefore, the defendant's motion to strike count three on these grounds must be granted.
III. CONCLUSION
Based on the foregoing, the court hereby denies the defendant's motion to strike count one of the plaintiffs' complaint, and hereby grants the defendant's motion to strike the plaintiffs' claim for double damages pursuant to § 47a-46 and count three of the plaintiffs' complaint.
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE [#111]
I. FACTS
On April 28, 2010, the plaintiffs, Jacqueline Goldstein and Jamain Pabon, filed a four-count complaint against the defendants, Douglas A. Rapp, Jr., Deutsche Bank National Trust Company (Deutsche Bank) and Old Republic Title Company (Old Republic) alleging claims for a violation of the entry and detainer statute, General Statutes § 46a-43, statutory theft pursuant to General Statutes § 52-564, negligent infliction of emotional distress and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., respectively. In their complaint, the plaintiffs allege the following facts. In July 2008, the plaintiffs took possession of the premises located at 32 Kings Highway in Ledyard, Connecticut (the premises). The plaintiffs entered into a written lease to occupy the premises that expired on September 20, 2009. The defendant initiated an action to foreclose a mortgage on the premises sometime prior to August 2009, and obtained title to the premises pursuant to the foreclosure action. In August 2009, while the plaintiffs were still entitled to possession of the premises pursuant to the terms of the lease, Old Republic and Rapp, acting on behalf of the defendant, installed a lock box on the premises, thereby preventing the plaintiffs from gaining access to the premises. At some point during the first two weeks of August 2009, the defendant, Old Republic and Rapp removed all of the plaintiffs' personal possessions from the premises, including mementos, family photographs and a jar containing the cremated remains of Goldstein's father, which they have refused to return despite the plaintiffs' demands therefor.
Rapp and Old Republic are not parties to the present motion. Hereinafter, the term the defendant refers to Deutsche Bank, individually.
On July 21, 2010, the defendant filed a motion to strike all three counts of the plaintiffs' complaint on the grounds that count one is time barred pursuant to the applicable statute of limitations, and counts two and three fail to state legally sufficient causes of action. The plaintiffs filed an objection to the defendant's motion on August 13, 2010.
II. DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "It 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The court must construe the facts in the complaint most favorably to the plaintiff." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
A. Count One — Entry and Detainer
The defendant first argues that count one of the plaintiffs' complaint should be stricken on the grounds that a claim for entry and detainer pursuant to § 46a-43 is barred by the statute of limitations period provided in General Statutes § 52-589. The plaintiffs counter that the defendant's motion should be denied because count one also alleges facts supporting a cause of action for common-law trespass and conversion. The plaintiffs further counter that § 52-589 is not the applicable statute of limitations because the statute applies only to a claim for forcible entry and detainer, and the plaintiffs have not alleged that the entry and detainer in the present case was forcible.
General Statutes § 52-589 provides: "No complaint for a forcible entry and detainer shall be brought but within six months after the entry complained of."
In Dudley v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 04 4000078 (January 20, 2005, Tanzer, J.), the court denied the defendants' motion to strike the plaintiff's claim for entry and detainer pursuant to § 47a-43 on the grounds that, when construed in a manner most favorable to sustaining its legal sufficiency, the allegations contained in the claim supported a cause of action for conversion. "The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights . . . Thus, conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
In the present case, the first count of the plaintiffs' complaint alleges that while the plaintiffs were still entitled to occupy the premises, the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, and failed to return the property despite the plaintiffs' demand therefor. In light of the foregoing case law, and construing the plaintiffs' claim in a manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiffs have alleged sufficient facts to state a claim for conversion. Therefore, the defendant's motion to strike count one must be denied, and as a result, the court need not reach a decision regarding the applicability of the statute of limitations in § 52-589 for forcible entry and detainer.
B. Count Two — Statutory Theft
The defendant also argues that count two of the plaintiffs' complaint should be stricken on the grounds that the plaintiffs fail to allege the requisite elements for a claim for statutory theft pursuant to § 52-564. Specifically, the defendant argues that the plaintiffs fail to allege that the defendant intentionally deprived the plaintiffs of their property. The plaintiffs counter that their claim for statutory theft is sufficiently pleaded.
General Statutes § 52-564 provides: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." "Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119 . . . Pursuant to § 53a-119, a person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 771.
"Superior Courts have consistently denied motions to strike when intent is pleaded. In DeHart v. Crossen, Superior Court, judicial district of Windham, Docket No. CV 044000241 (June 3, 2005, Riley, J.), the court denied the motion to strike because defendant had added the additional allegation of intent necessary to state a cause of action for theft stating that whether the defendant can substantiate this claim is irrelevant to the present motion. See also Coyle Crete, LLC v. Nevins, [Superior Court, judicial district of New Haven,] Docket No. CV 06 5004795 (December 2, 2008, Holden, J.) ( 46 Conn. L. Rptr. 761, 764) (denying motion to strike because plaintiff alleged that the defendant intended to withhold the funds in order to appropriate the same to a state marshal); Coston v. Reardon, Superior Court, judicial district of Windham, Docket No. 063892 (October 18, 2001, Foley, J.) ( 30 Conn. L. Rptr. 611, 612) (denying motion to strike because pleaded conversion plus that defendant intended to deprive plaintiff of property by destruction and/or injury of personal property)." (Internal quotation marks omitted.) Today's Kids, LLC v. Bach, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5009121 (October 1, 2009, Adams, J.).
In the present case, the plaintiffs allege in count two of their complaint that the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, and failed to return the property despite the plaintiffs' demand therefor. The plaintiffs further allege in count two that the defendant intended to deprive the plaintiffs of their personal possessions. Accordingly, construing the plaintiffs' claim in a manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiffs have alleged that the defendant's conduct was intentional, and therefore, the plaintiffs have sufficiently pleaded the requisite elements for a claim for statutory theft pursuant to § 52-564. As a result, the defendant's motion to strike count two on these grounds must be denied.
C. Count Three — Negligent Infliction of Emotional Distress
The defendant further argues that count three of the plaintiffs' complaint should be stricken on the grounds that the state of Connecticut does not recognize a cause of action for negligent infliction of emotional distress stemming from the damage or destruction of personal property. The plaintiffs counter that their claim for negligent infliction for emotional distress is legally sufficient because the plaintiffs' allegations go beyond the mere damage or destruction of personal property.
In order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must plead and prove: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
While there is no direct appellate authority dealing with a claim for negligent infliction of emotional distress where the damage alleged is injury to property, in Myers v Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), our Appellate Court noted that "[o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." Id., 402. "The basis of that ruling [in Myers] was that damage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress." Blue v. Renaissance Alliance, Superior Court, judicial district of New Haven, Docket No. CV 05 4001949 (May 12, 2006, Shluger, J.). Furthermore, "[e]very Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property . . . These courts have reasoned that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Williams v. Feeley, Superior Court, judicial district of New London, Docket No. CV 05 5000295 (October 2, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 168, 170).
In the present case, the plaintiffs allege in count three that the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, including "mementos, family photos and a jar containing the cremated remains of . . . Goldstein's father." The plaintiffs further allege in count three that the "[defendant's] aforesaid conduct created an unreasonable risk of causing [the] [p]laintiffs' emotional distress," and "[the] [p]laintiffs suffered severe emotional distress as a result . . ." Pursuant to the allegations, the plaintiffs' claim of emotional distress is directly related to property damage, and the court finds that it was not foreseeable to the defendant that his conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm. As a result, even construing the allegations in the plaintiffs' favor, the plaintiffs' claim for negligent infliction of emotional distress cannot withstand a motion to strike. Therefore, the defendant's motion to strike count three on these grounds must be granted.
III. CONCLUSION
Based on the foregoing, the court hereby denies the defendant's motion to strike counts one and two of the plaintiffs' complaint, and hereby grants the defendant's motion to strike count three of the plaintiffs' complaint.