45 Park Street Associates LP v. Los Cubanitos Bakery, Inc.
CVH 85031679HD, H#714
SUPERIOR COURT OF CONNECTICUT
JUDICIAL DISTRICT OF HARTFORD- NEW BRITAIN
1986 Conn. Super. LEXIS 179
January 8, 1986, Decided
MEMORANDUM OF DECISION RE: MOTION TO STRIKE SPECIAL DEFENSES
Although the written lease between the parties extended to July 30, 1986, the defendant-tenant vacated the bakery on or about October 30, 1984. Plaintiff-landlord seeks damages. Claiming that the landlord had a duty to mitigate, the tenant filed a motion to strike portions of the complaint; the tenant insisted suit was ripe only when actual damages were set.
Without deciding then that mitigation was required, the court held, nevertheless, in denying the motion, that suit is not barred by uncertain damages; they just may be difficult for the landlord to prove. Memorandum, August 12, 1985, # 674.
Now the landlord seeks to strike certain special defenses raised by the tenant. The motion challenges legal sufficiency and admits all well pleaded facts. Conn. Practice Book 152; Verdon v. Transamerica Ins. Co. , 187 Conn. 363, 365, 446 A.2d 3 (1982). The special defenses are thinly phrased. Conn. Practice Book 108 and 109.
A.
I. PREMATURE ACTION
While conceding that the ruling in # 674 may be raised on appeal, tenant claims this special defense as a vehicle to deny that the landlord did or could meet its burden of legally proving damages from trial to expiration of lease or reletting. Once a special defense is filed, the tenant accepts the burden of proof of that defense. Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973). Tenant is concerned that a simple denial of damages might not be enough to protect her factual claim. Conn. Practice Book 164. The court thinks it is, subject to developments at trial.
B.
II. MITIGATION
The landlord’s revised complaint appears to claim the total rent and taxes due under the remainder of the lease. “In an action for rent due, a lessor of commercial property is generally under no obligation to mitigate . . . such an obligation arises only if the lessor manifests an intention to terminate the tenancy either by taking an unequivocal act showing the intent or by bringing an action for damages . . .” (emphasis added; citations omitted), Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985); cf. Berkman, Duty of Commercial Landlords to Mitigate, 55 Conn. B.J. 339 (1981). The tenant recognizes its burden of imposing on the landlord a duty to mitigate either under case law or the lease.
C.
IV. ORAL RELEASE OF LEASE
Paragraph Twenty-Seventh of the lease states the instrument may not be changed orally. The landlord also claims that a modification of this written contract must be in writing. Conn. Gen. Stat. 52-550. But tenant accepts the burden of proving not only an oral release but additional facts to enforce the release outside the statute. See S.H.V.C., Inc. v. Roy, 188 Conn. 503, 450 A.2d 351 (1982); Blakeslee v. Water Commissioner, 121 Conn. 163, 183 A. 887 (1936); Baier v. Smith, 120 Conn. 568, 571-73, 181 A. 618 (1935).
D.
Accordingly, the motion to strike is granted as to the first special defense and denied as to the second and fourth special defenses.
GOLDSTEIN, J.