Tarantelli v. Town of East Haven, No. Cv97 0404125 (Oct. 31, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiffs have commenced this action for the return of funds from the defendant. The funds are alleged to be the remaining sum from a bond for the completion of certain construction work. The plaintiffs allege that the construction work has been completed, and that subject to certain deductions, the remaining sums should now be disbursed to the plaintiffs. The action has been commenced as request for a writ of mandamus CT Page 11038 requiring the defendant to disburse the funds.

The defendant has moved to dismiss the action, essentially arguing that the requirements for the issuance of a writ of mandamus are absent in this case. While the defendant's argument is persuasive on the issue of whether mandamus is the appropriate remedy as the complaint is now worded, the defendant has failed to present any authority that the court must dismiss the action.

The parties are properly before the court on the contested issue of whether and how much money is owed by the defendant to the plaintiffs. The court has subject matter jurisdiction. The plaintiffs may not ultimately prevail because they seek to compel the exercise a discretionary function in a way most favorable to them, Light v. Board of Education, 170 Conn. 35 (1975), rather than to compel a mandatory duty. But under Conn. Practice Book Sec. 142 et seq., the action is not one over which the court lacks jurisdiction. The defendant's claim is more appropriately one that should be raised in a Motion to Strike.

The Motion to Dismiss is denied.

Patty Jenkins Pittman, Judge