Bradford v. Brennan, No. 079581 (Jul. 31, 1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ORDER (#182) After hearing held on motion to strike of defendants, Francis R. Brennan, Board of Education, and City of Waterbury, it is hereby ORDERED as follows:

1. The defense of governmental immunity is properly raised by special defense; Practice Book, 164; Gauvin v. New Haven,187 Conn. 180, 184 (1982); and accordingly is not a proper subject of a motion to strike.

2. The revised complaint, dated October 26, 1990, contains no allegations against the defendant — Board of Education. Such defendant is misjoined and should be dropped. Cf. White v. Portland, 67 Conn. 272, 277 (1896). A motion to strike is the exclusive remedy to raise an issue of misjoinder. Practice Book, 198.

3. The revised complaint, dated October 26, 1990, contains several allegations of duties owed to the plaintiffs by the defendant-Brennan. Whether the duties are discretionary or CT Page 6181 ministerial is a question of fact; Couture v. Board of Education,6 Conn. App. 309, 311 (1986); not properly the subject of a motion to strike. Middletown Trust Co. v. Middletown National Bank,110 Conn. 13, 21 (1929).

The motion to strike, as raised by the defendant-Board of Education, is granted. The motion is otherwise denied.

GAFFNEY, J.