Opinion
No. CV 03 0071645
February 2, 2006
MEMORANDUM OF DECISION
Where a judgment is rendered upon default or nonsuit, a defendant may seek to open the same in accordance with General Statutes § 52-212 and Practice Book § 17-43. The motion made pursuant to Practice Book § 17-43 shall be written, verified by the oath of the complainant or his attorney and shall state in general terms the nature of the claim or defense and the reason why the plaintiff or defendant failed to appear. Practice Book § 17-43. "The use of the word `shall,' rather than `may,' in both the statute and the rule of practice indicates that these requirements are mandatory rather than directory." Lynch v. Imported Cars of Greenwich, Inc., 37 Conn.Sup. 676, 677-78, 435 A.2d 46 (App. Sess. 1981).
"Connecticut courts have frequently refused to open judgments because of a delict in compliance with the statute or rules of practice. We have previously held that when a defendant fails to comply with the provisions of General Statutes § 52-212 and Practice Book § 17-43, the trial court properly may refuse to grant the defendant's motion to open the judgment by default." Dister Corp. v. Northco, Inc., 50 Conn.App. 764, 765-66, 719 A.2d 485 (1998); Rocklen's Auto Parts Service, Inc., v. Rakiec, 6 Conn.App. 504, 506 A.2d 168 (1986).
In the present case, the defendant's motion to open judgment upon default fails to comply with the procedural requirements of General Statutes § 52-212(b) and Practice Book § 17-43 in that the motion was not verified by oath of the named defendant or his attorney. Accordingly, the defendant's motion to open judgment in this matter is denied and the plaintiff's objection to said motion is sustained.