Constabile v. Stratton, No. Cv90 03 04 39 S (Apr. 1, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO DISMISS DEFENDANT ROTMANS' COUNTERCLAIM AND CROSSCLAIM The Town of Oxford and the plaintiffs' separate Motions to Dismiss are procedurally improper. The Town argues that its motion, should be granted because the codefendant Rotmans' cross complaint does not arise out of the transaction or one of the transactions upon which the plaintiffs' complaint is predicated. The plaintiffs' motion to dismiss the defendants' counterclaim also argues that the defendant Rotmans' counterclaim is unrelated to the issues in the plaintiffs' complaint. The proper motion to attack a counterclaim or cross complaint on the ground that it does not arise out of the transaction in the plaintiffs' complaint is a request to revise.

The question raised by each of these motions is not jurisdictional, or related to improper venue or insufficiency of process or the service of it and therefore does not come within the ambit of defects reached by a Motion to Dismiss. P.B. 143 Where the question with respect to counterclaims or crossclaims is not whether they failed to state causes of action and were therefore demurrable using a Motion to Strike, but instead whether, in view of their subject matter, they were properly filed in this case, such a question is correctly raised on a Request to Revise made pursuant to P.B. 142(2). Stephenson, Connecticut Civil Procedure, 129g, p. 541 (2d ed.); Springfield-Dewitt Gardens, Inc. v. Wood,143 Conn. 708, 711. For these procedural reasons, the Motions to Dismiss defendant Rotmans' counterclaim and crossclaim are denied.

Flynn, J.