Esposito v. Prassel, No. Cv86 23 44 77 (Jan. 8, 1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE #281 Before this court is a Motion to Strike aimed at special defenses which seek a set off for amounts already paid to the plaintiff for underinsured motorists benefits by an insurance carrier.

Defendant Bracchi owns retail premises leased to the defendant F. W. Woolworth Co. and the plaintiff executor claims that the deceased Andra Angelo suffered injuries and died because she was struck by an auto because of the negligent layout and maintenance of the parking lot for the Woolworth store.

The plaintiff settled with the driver, obtained an additional $300,000 from an underinsured motorists carrier and now seeks damages against both landlord Bracchi and tenant Woolworth on theories of premises liability.

The defenses are as follows:

"The plaintiff has received a sum of $300,000 in underinsured motorists benefits and any judgment rendered for the plaintiff in the above captioned matter should be credited and set off from any liability found to exist against the alleged tortfeasor F. W. Woolworth.

"The plaintiff has received a sum of $300,000 in underinsured motorists benefits and any judgment rendered for the plaintiffs in the above captioned matter should be credited and set off from any liability found to exist against the alleged tortfeasor Dominick Bracchi."

While there does not appear to be many disputes as to the operative facts, there are insufficient facts pled in the special defense to decide this issue on a Motion to Strike. It is apparent when one reads page 2 of the Plaintiff's brief in support of the Motion, that numerous facts are alleged in the brief which are pertinent to the legal decision to be made and might be set forth in affidavit form attached to a Summary Judgment Motion but which this court cannot assume on a speaking Motion to Strike. CT Page 897

Although the court is of the opinion that the plaintiff is entitled to determination of the issue of the set off for the underinsured motorists benefits, it can only be determined if it arrives before the court in the proper vehicle.

The Motion to Strike is denied.

FLYNN, JUDGE