Ysg Properties v. Wetherell, No. Cv 90 44255 S (Aug. 21, 1992) , 1992 Conn. Super. Ct. 7922 ( 1992 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION (MOTION TO STRIKE SPECIAL DEFENSE) The plaintiff moves to strike four special defenses raised by the defendant on the grounds that each special defense is legally insufficient. The Court rules as follows:

1. Accord and Satisfaction: The defendant claims that the parties agreed to orally terminate a lease with the conditions being that defendant vacate the premises and the plaintiff would waive rent, fees and expenses due it pursuant to the written lease. Plaintiff claims this defense is CT Page 7923 barred by the statute of frauds. The Court disagrees. An oral agreement for substituted performance may result in accord and satisfaction and does not necessarily violate the statute of frauds. Baier v. Smith, 120 Conn. 568 (1935). Heyman v. CBS. Inc., 178 Conn. 215 (1979).

The Motion to Strike the first special defense is denied.

2. Statute of Limitations: This is a question of fact. The defendant claims that a two year statute of limitations applies to the first five counts. This defense is properly raised by special defense and requires a factual determination.

Therefore, the Motion to Strike the second special defense is denied.

3. Waiver and Estoppel: This special defense also requires that factual determinations be made as to whether the elements of waiver and estoppel are proved. The allegations of the special defense sufficiently raise this issue, thus the Motion to Strike the third special defense is denied.

4. Estoppel: The plaintiff argues that this special defense is a series of erroneous facts and baseless assumptions. If they are is also a fact question which will be proved or not. The claims raised by this special defense are sufficient to withstand a Motion to Strike and the Motion as it goes to the fourth special defense is denied.

BY THE COURT,

Hon. Lawrence C. Klaczak Superior Court Judge