Sibilia v. Western Connecticut Medical Group, P.C.

Nicole SIBILIA et al. v. WESTERN CONNECTICUT MEDICAL GROUP, P.C.

No. LLICV166014063S

Superior Court of Connecticut, Judicial District of Litchfield, Litchfield

September 20, 2018

UNPUBLISHED OPINION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...