Opinion
No. 298653
January 10, 1997
MEMORANDUM OF DECISION
The third party defendant moved to strike the third party plaintiff's complaint. The court ( Ballen, J.) granted the motion. The third party plaintiff thereupon filed a substitute complaint. The third party defendant now has filed a motion for order of compliance, claiming that the substitute compliant does not comport with Judge Ballen's memorandum of decision granting the motion to strike.
The third party plaintiff argues that the third party defendant may not file a motion for order of compliance because it is in default for failure to answer the substitute complaint. that order is less than three months old. Since it is not unlikely that it will be set aside on the filing of a proper pleading, this court addresses the merits of the motion for an order of compliance rather, than deny the motion here only to entertain it later. The latter course "`would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road.'" Carnese v. Middleton, 27 Conn. App. 530, 538, 608 A.2d 700 (1992), quoting Chomko v. Patmon, 20 Conn. App. 159, 163, 565 A.2d 250 (1989).
When a motion to strike a complaint is granted, the prevailing party may (1) move for judgment pursuant to Practice Book § 157 if a new complaint is not timely filed, or (2) request that the new pleading be deleted and that judgment enter if the allegations therein are the same, in substance, as the allegations which have been stricken. Royce v. Westport, 183 Conn. 177 (1981). Here, the third party plaintiff has filed a substitute complaint and there is no claim that the allegations of that complaint are substantially the same as those which were stricken. There is no authorization in the Practice Book for a motion for an order of compliance where the new pleading does not comport with dicta in the court's memorandum of decision, and pleading "`[i]nnovations should not be put into practice ex parte by counsel.' Vigue v. John Hancock Mutual Life Ins. Co., 147 Conn. 305, 306, 160 A.2d 484 (1960)." Brookfield v. Boulder Spring Water Co., 196 Conn. 355, 358, 493 A.2d 862 (1985).
The motion for order of compliance (# 175.00) is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court