Sternberg v. Botham, No. 61187 (Jul. 2, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ISSUE Whether the court should deny co-defendant Duane Totten's motion for summary judgment because the pleadings are not closed. FACTS The present action was originally instituted by the plaintiff, Michael J. Sternberg, as a small claims action. The small claims complaint alleged that defendants Betty Ann Botham and Duane Totten owe the plaintiff money for roofing and flooring services rendered by the plaintiff. Magistrate Ertman granted the defendants' motion to transfer the action to the regular docket on February 25, 1991. See Order, #015. The plaintiff subsequently filed an amended complaint, #108. (Although this document is entitled "Counterclaim," it is signed by the plaintiff and takes the form of a complaint). The amended complaint alleges that on or about August 1, 1989, the plaintiff and Botham entered into an agreement whereby the plaintiff agreed to construct an addition to Botham's house and perform other renovation work. Botham did not meet her obligations under the contract and, as a result, the plaintiff has suffered monetary loss and damage to his reputation. The complaint contains no allegations relating to Totten. The defendants have filed a counterclaim, #103, alleging that the plaintiff performed the renovation work in a negligent manner and that it will cost Botham substantial sums of money to repair and complete the renovation work. Co-defendant Totten now moves for summary judgment on the ground that the plaintiff has not alleged a cause of action against him. The plaintiff has not filed a responsive pleading to the defendants' counterclaim, however. DISCUSSION "A motion for summary judgment may be filed by any party at any time, addressed to the claim or counter-claim, after the pleadings are closed as between the parties to the motion. Practice Book Sec. 379." (Emphasis added). CT Page 6338 Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985)." Griggs v. B G Land, Inc., 24 Conn. App. 610, 611-12,590 A.2d 982 (1991). CONCLUSION The court denies Totten's motion for summary judgment because the pleadings are not closed. AUSTIN, J.