Orgera v. Stamford Towers Ltd. Partn.

Full title: MARIO ORGERA, INC. v. STAMFORD TOWERS LIMITED PARTNERSHIP, ET AL

Court: Connecticut Superior Court Stamford-Norwalk Judicial District at Stamford

Date published: Nov 9, 1990

1990 Ct. Sup. 3552 (Conn. Super. Ct. 1990)

Opinion

No. CV90 0106294 S

November 9, 1990.

MEMORANDUM OF DECISION

LEWIS, J.

This is an action to foreclose a mechanic's lien in which a bond with surety was substituted in place of the lien. General Statutes 49-37(a).

The defendant Stamford Towers Limited Partnership (Stamford Towers), owner of record of property located on Washington Boulevard in Stamford, has moved (#133) to strike the plaintiff's complaint insofar as it names this partnership as a defendant. "The exclusive remedy for misjoinder of parties is by motion to strike." Practice Book 198.

The plaintiff, Mario Orgera, Inc. (Orgera), was a supplier of concrete to the Stamford Towers building. It first filed a mechanic's lien for unpaid amounts due it but subsequently became the obligee on a bond posted by Felix Equities, Inc. a concrete subcontractor who had hired the plaintiff, with The Hartford Fire Insurance Company as surety.

Stamford Towers as the owner of the property claims that it is no longer a proper party to this suit because the plaintiff amended its complaint and elected to proceed on the bond against Felix Equities and The Hartford, the principal and surety on this bond. General Statutes 49-37(a).

Although no Connecticut case on point has been located, I agree with the defendant that since it is not a party to the bond and because the plaintiff, which had no privity with this defendant, in effect has abandoned its claim against the realty because of the substitution of a bond, the owner of the realty is no longer a proper party to the suit. In other words, there no longer exists a mechanic's lien to be foreclosed against the owner of the property. It seems clear that the purpose of a surety bond such as this is to make the owner's property free and alienable, and this goal would be frustrated by permitting suit against the property owner. Therefore that portion of the complaint which purports to assert a legally cognizable claim against this defendant should be and hereby is stricken.

SO ORDERED.

Dated at Stamford, Connecticut this ninth day of November, 1990.

LEWIS, J.