Weiss v. Town of Greenwich, No. Cv91 0119062 S (Apr. 30, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE The defendants in the above entitled tax appeal have asserted: in the first special defense, that the appeals are based on ineffective process and that the plaintiffs failed to cite or describe the plaintiffs in the citation; in the second special defense, that the appeals were not taken within the time required; and in the third special defense, that there is a misjoinder of parties. The plaintiffs have moved to strike the first, second and third special defenses on the grounds that the matters raised in those defenses have been previously determined by the court.

The first and second special defenses assert jurisdictional claims which were decided adversely to the defendants, by the court on a motion to dismiss. The court agrees with the decision in Webster v. Canada Cycle Motor. et al, 7 CLT No. 4 pg. 18 (Borden, J.) and, where jurisdictional issues are decided adversely to the defendant and where rights of appeal are preserved by virtue of Practice Book 146, the court believes that it is not appropriate to plead the same matters as a special defense thereby requiring a re-litigation of the issue at the trial on the merits.

With respect to the claims asserted in the third special defense, the exclusive remedy for misjoinder of parties is by a motion to strike. See, Practice Book 198. See also Practice Book CT Page 4213 100; General Statutes 52-108.

Accordingly, the motion to strike the first, second and third special defenses is hereby granted.

RUSH, J.