Opinion
No. CV-09-5032176
June 9, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#108)
The plaintiff, Konowitz, Kahn Co., LLC, filed suit against the defendants, John and Clara Gissas, on October 8, 2009. The plaintiff's two-count complaint seeks payment for accounting services it provided to the defendants during 2005 and 2006. On December 1, 2009, the defendants filed a request to revise. On December 8, 2009, the plaintiff filed an objection to this request and the defendants filed a reply to the plaintiff's objection on January 21, 2010. This court overruled plaintiff's objection on April 5, 2010. The plaintiff filed an amended complaint on April 9, 2010, which includes an additional count. The defendants filed this motion to strike on April 27, 2010, with an objection by the plaintiff and the defendants' reply following.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). The defendants move to strike the plaintiff's April 9, 2010 amended complaint on the basis that the complaint does not comply with the defendants' December 1, 2009 request to revise. The defendants also seek sanctions against the plaintiff. The plaintiff counters that the defendants are improperly using a motion to strike, as they have failed to attack the legal sufficiency of the plaintiff's complaint in any manner. The court agrees with the plaintiff.
"Section 17-31 of the Practice Book provides, inter alia, that [w]here either party is in default by reason of failure to comply with [Section] . . . 10-35 [requests to revise] . . . The proper procedure in cases where a party has failed to comply with such a request is to file a motion for default or nonsuit in accordance with § 17-31." (Internal quotation marks omitted.) Zdanis v. Sekeret, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084641 (July 29, 2002, Moraghan, J.T.R.); see also Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 377 n. 12, 477 A.2d 648 (1984); Kessler v. Karpinski, Superior Court, judicial district of Danbury, Docket No. CV 00 9671 (August 7, 2000, Resha, J.); Barber v. Glick, Superior Court, judicial district of Hartford, Docket No. CV 99 0589710 (January 20, 2000, Fineberg, J.) ( 26 Conn. L. Rptr. 252-53); Gregory v. Anson Getty, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 087721 (April 15, 1997, Levin, J.) ( 19 Conn. L. Rptr. 526-27).
"Practice Book § 17-31 states, in relevant part, that [w]here either party is in default by reason of failure to comply with Section . . . 10-35 [the practice book section devoted to requests to revise] the adverse party may file a written motion for a nonsuit or default . . ." (Internal quotation marks omitted.) Barber v. Glick, supra, 26 Conn. L. Rptr. 253. Therefore, this motion is not properly before the court. Accordingly, the defendants' motion to strike the plaintiff's amended complaint and request for sanctions are denied.