Opinion
No. CV09 4018663 S
August 2, 2010
MEMORANDUM OF DECISION RE OBJECTION TO CROSS CLAIM (#137) AND MOTION TO STRIKE (#139)
Waterbury Realty, LLC (Waterbury), filed a cross claim (#135) against Great Brook Realty, Inc. (Great Brook), on May 24, 2010. Waterbury and Great Brook are the defendants in this action brought by the plaintiff, Chase Chase, LLC. The plaintiff, on June 3, 2010, filed both an objection to the cross claim (#137) and a motion to strike the cross claim (#139). The plaintiff also filed a memorandum of law (#139.50) with the motion to strike. Although Waterbury filed nothing in response to the objection to the cross claim, it filed an objection to the motion to strike (#142) along with a memorandum of law (#142.50) on June 22, 2010.
Great Brook has not filed an appearance in this action. On July 22, 2009, the court granted the plaintiff's motion to default Great Brook for failure to appear (#112). There are also two pending motions for default against Great Brook filed by Waterbury by reason of its failure to appear (#140) and failure to plead (#141) with respect to the cross claim.
The parties appeared before the court on June 11, 2010, at which time Attorney William Blake, whose firm had recently filed an appearance on behalf of Waterbury as additional counsel, sought a continuance of the scheduled trial date, then set for June 25, 2010. Attorney Blake argued that he needed the extra time to prepare for trial. Although the plaintiff strenuously objected to the continuance, the court granted it, setting a new trial date of September 14, 2010. On June 25, 2010, the parties again appeared before the court to argue the objection to the cross claim and the motion to strike. The matter was then continued until July 9, 2010, to give the parties an opportunity to research their respective claims.
In its objection to the cross claim, the plaintiff asserts that the pleadings were closed on December 4, 2009. The plaintiff argues that permitting the filing of the cross claim after the close of pleadings would cause the trial to be substantially delayed and result in prejudice to the plaintiff.
In support of its motion to strike, the plaintiff argues that, because the pleadings were previously closed, Waterbury was required to request leave to file a cross claim and failed to do so. Therefore, the plaintiff contends, the court has the discretion to refuse to permit the cross claim and should exercise that discretion because of the prospect of prejudice and unnecessary delay.
Waterbury advances two arguments in opposition to the motion to strike. First, it contends that a motion to strike cannot be granted on the ground that the subject pleading was untimely filed. Second, it argues that the court should exercise its discretion in favor of permitting the cross claim because it is diligently pursuing the claim and there are ways to avoid a delay in the trial, such as holding a separate trial on the cross claim.
The court will now address the plaintiff's objection to the cross claim. As the plaintiff correctly asserts, the pleadings were closed in this action prior to the filing of the cross claim, specifically December 4, 2009. The trial, which has been previously delayed, is now scheduled for September 14, 2010. The court has discretion to allow or forbid the filing of new pleadings after the pleadings have been closed. See Ivimey v. Watertown, 30 Conn.App. 742, 745, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993); Meehan, Meehan Gavin, LLP v. Paniccia, Superior Court, judicial district of Fairfield, Docket No. CV 04 4001862 (October 14, 2005, Rodriguez, J.). Preventing undue delay in the commencement of trial is a valid consideration when determining whether to allow a late-filed pleading. Cf. Beckenstein v. Reid Riege, P.C., 113 Conn.App. 428, 440, 967 A.2d 513 (2009) (upholding trial court's refusal to allow amendment to complaint based in part on prospect of undue delay in commencement of trial).
The court agrees with the plaintiff that permitting the cross claim would cause undue further delay in the commencement of trial. The cross claim raises entirely new and complex issues relating to Great Brook's conveyance of the subject property to Waterbury, including the issue of the extent of Great Brook's knowledge of the use of the subject property by the plaintiff and others. Compare Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 257, 905 A.2d 1165 (2006) (upholding trial court's refusal to permit late amendment to complaint that would have added "new and complex legal issues"). These issues, at this point, would be better litigated in a separate action. Therefore, the court deems the cross claim untimely.
The court, for the aforementioned reasons, hereby sustains the plaintiff's objection to the cross claim. Accordingly, the court will not consider the motion to strike as it has been rendered moot.
It is so ORDERED.
CT Page 15644