Opinion
LLICV166014063S
09-20-2018
Nicole SIBILIA et al. v. WESTERN CONNECTICUT MEDICAL GROUP, P.C.
UNPUBLISHED OPINION
OPINION
Bentivegna, J.
Before the court for consideration at this time are the following: defendant’s, Western Connecticut Medical Group, P.C., objection and motion to preclude pleading matters in avoidance of defendant’s special defense (Entry # 177), dated May 16, 2018; plaintiffs’ substituted and corrected reply and matters in avoidance (Entry # 179), dated May 21, 2018; plaintiffs’ reply and objection to motion to preclude (Entry # 180), dated May 21, 2018; and defendant’s reply to plaintiff’s objection to motion to preclude pleading matters in avoidance of defendant’s special defense (Entry # 181), dated June 5, 2018. The matter was argued at civil short calendar on August 27, 2018.
The defendant objects to the plaintiffs’ assertion of tolling doctrines in their objection to the defendant’s motion for summary judgment and moves to preclude the plaintiffs from pleading matters in avoidance of its special defense. "General Statutes § 52-121(a) provides in relevant part: Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of the court until the court has heard any motion for judgment by default ... for failure to plead which has been filed in writing with the court in which the action is pending." (Internal quotation marks omitted.) Kaye v. Housman, 184 Conn.App. 808, 822 (2018). Furthermore, our Supreme Court "afford[s] trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of the rules as long as the opposing party has not raised a timely objection to the procedural deficiency ... It necessarily follows, therefore, that when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion." (Citations omitted; emphasis added; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-74, 819 A.2d 773 (2003).
In Zatakia v. Ecoair Corp., 128 Conn.App. 362, 368, 18 A.3d 604, cert. denied, 301 Conn. 936, 23 A.3d 729 (2011), the defendant asserted statutes of limitations special defenses. At the beginning of trial and before the plaintiff presented evidence, counsel for the plaintiff announced that the plaintiff’s position was that the relevant statute of limitation was tolled and has not run. Id. Prior to this announcement, the plaintiff failed to affirmatively plead any matters in avoidance of the defendant’s special defenses. Id. The trial court considered the tolling doctrines after a key piece of evidence was admitted into evidence as an exhibit, a relevant witness was cross examined by the defendant, and the parties were permitted to file simultaneous post-trial briefs. Id. The Appellate Court held that, while "it would have been a better practice for the plaintiff to have alleged the matter in avoidance in her reply to the special defenses," it was not an abuse of discretion for the trial court to consider the tolling issue because the defendant knew the lapsing of the statutes of limitations was an issue to be considered by the court as it introduced the issue by asserting its special defenses. Id., 369.
In the present case, the defendant knew that the lapsing of the statute of limitations is an issue to be considered by the court because the defendant raised the issue in its special defense and in its motion for summary judgment. The plaintiffs, in their objection to the defendant’s motion for summary judgment, indicated they had yet to file a reply to the asserted special defense, but still apprised the defendant of the matters in avoidance they plan to allege. The defendant can still respond to any matters pled in avoidance of its special defense in a reply to the plaintiff’s memorandum in opposition, at oral argument on the motion for summary judgment, and at trial, assuming the defendant’s motion for summary judgment is denied. Additionally, no motion for nonsuit for failure to plead concerning a reply to the defendant’s special defense has been filed with or heard by the court. Accordingly, the plaintiffs may file a reply in which they plead matters in avoidance of the defendant’s special defense. Kaye v. Housman, 184 Conn.App. 822.
For the above-stated reasons, the court overrules the defendant’s objection and denies its motion to preclude the plaintiff from pleading matters in avoidance to the defendant’s special defense.
SO ORDERED.