Opinion
No. CV 04 0287636 S
October 8, 2004
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT OF NONSUIT AND MOTION TO STRIKE ( #110)
I PROCEDURAL HISTORY
On May 17, 2004, the plaintiff, Maria Simonow, filed a one-count complaint against the defendant, St. Francis Hospital Medical Center, alleging that on April 26, 2002, she was an inpatient at the defendant hospital. The return date is May 25, 2004. She alleged that she slipped and fell while entering a bathroom and that the occurrence was due to the negligence and carelessness of the defendant inasmuch as it failed to maintain the bathroom floor properly, failed to inspect the bathroom floor reasonably and failed to warn the plaintiff of the dangerous condition.
On June 10, 2004, the defendant filed a request to revise two portions of the complaint. On June 23, 2004, the plaintiff filed an objection to the request to revise, which was overruled by the court, Frazzini, J., on July 13, 2004. On August 12, 2004, the plaintiff filed a revised complaint, which complied with one of the requested revisions and not the other. On August 16, 2004, the defendant filed a motion for judgment of nonsuit on the ground that the revised complaint was not in compliance with the court's order granting the requested revisions. On August 18, 2004, the plaintiff filed a second revised complaint, dated August 17, 2004, which purports to set forth an action based on the negligent supervision of employees. The plaintiff did not file a request for leave to amend the complaint. See Practice Book § 10-60. On August 31, 2004, the defendant filed a motion for judgment of nonsuit for the failure to comply with the court's order and a motion to strike the plaintiff's revised complaint from the docket.
II DISCUSSION
"Practice Book § 10-59 provides that a party may, as a matter of right, amend its complaint within the first thirty days following the return date. Thereafter, it may do so by filing a request for leave to amend its complaint. Practice Book § 10-60." Vanliner Ins. Co. v. Fay, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 980352037 (December 20, 2002, Doherty, J.). In this case, more than thirty days have passed since the return date and the plaintiff has attempted to amend the complaint to include allegations of negligent supervision without filing a request for leave to amend. Furthermore, the second revised complaint fails to contain the second revision set forth in the request to revise. "A trial court should not allow an amendment that will work an injustice to any party or take unfair advantage of the opposing party. Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Moore v. Sergi, 38 Conn.App. 829, 836, 664 A.2d 795 (1995)." Baranowski v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148905 (August 16, 2000, Hodgson, J.). Here, to allow the plaintiff to file its revised complaint, which fails to contain the second revision ordered by the court, would work such an injustice. See id. Accordingly, the motion to strike the second revised complaint, dated August 17, 2004, is granted.
As a final matter, the proper pleading to enforce a request to revise is a motion for nonsuit. See Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 377 n. 12, 477 A.2d 648 (1984). Here, the plaintiff has failed to comply with the court's order overruling the plaintiff's objection to the request to revise. Accordingly, the plaintiff shall comply with the request to revise within ten days or nonsuit shall enter.
III CONCLUSION
The motion to strike the second revised complaint, dated August 17, 2004, is granted. A judgment of nonsuit shall enter unless the plaintiff complies with the request to revise within ten days.
So Ordered.
Peter Emmett Wiese, Judge