Opinion
(4936)
Submitted on briefs December 12, 1986 —
Decision released February 17, 1987
Action to enjoin the defendants from continuing their construction work on certain premises located in the city of Hartford, and for other relief, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, M. Hennessey, J., denied the injunctive relief sought; after the plaintiff filed a revised complaint, the court, Shaughnessy, J., granted the defendants' motion to strike; thereafter, the defendants' objection to the plaintiff's request for leave to file a substitute complaint was sustained by the court, A. Aronson, J.; subsequently, the court, M. Hennessey, J., granted the defendants' motion for judgment and rendered judgment for the defendants, from which the plaintiff appealed to this court. Error; further proceedings.
Ramon A. Pacheco filed a brief for the appellant (plaintiff).
Thomas C. Clark and John W. Bradley, Jr., filed a brief for the appellees (defendants).
The plaintiff tenant appeals from the trial court's decision sustaining the defendants' objection to the plaintiff's request for leave to file a substitute complaint and subsequently awarding judgment for the defendants. The sole issue is whether the trial court, after granting the defendants' motion to strike the complaint, may refuse to permit the filing of a substitute complaint within fifteen days, and then render judgment for the defendants.
On or about May 15, 1985, the plaintiff filed a revised complaint against the defendants alleging interference with his restaurant business, by renovation work being done by the named defendant. The defendants filed a motion to strike the revised complaint and an accompanying memorandum of law as required by Practice Book 155.
Practice Book 155 provides in pertinent part: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies. . . . An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion."
The plaintiff failed to file a memorandum of law objecting to the granting of this motion as required by Practice Book 155. Thus, the plaintiff was "deemed by the court to have consented to the granting of the motion." Practice Book 155. The revised complaint was stricken in its entirety on September 16, 1985. On September 26, 1985, the plaintiff requested leave to file a substitute complaint, adding a count claiming breach of lease by the defendants. Simultaneously, the plaintiff filed a substitute complaint. An objection to the request was filed by the defendants and sustained on November 19, 1985. Judgment was rendered in favor of the defendants on January 27, 1986.
In this situation, we look to Practice Book 157 which provides: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint . . . ." In this case, the plaintiff filed a substitute complaint ten days after the previous complaint was stricken; thus, he complied with 157.