Edward Gwozdz v. BCG LLC (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 250 (QUALITY INSULATION)

This case arises out of the purchase of a home by the plaintiff, Edward Gwozdz.   The plaintiff originally brought this action against BCG Development, LLC (BCG) and Brian C. Gebo. On May 29, 2009, BCG and Gebo filed a motion for permission to implead eleven subcontractors.   On July 6, 2009, the court, Martin, J., granted the motion.   Quality Insulation, Inc. (Quality) was among the parties added to the action.   On September 23, 2009, the plaintiff filed a request for leave to amend and amended complaint in order to “plead over” the subcontractors, including Quality.

The plaintiff's operative complaint, the fourth amended revised complaint, was filed on January 25, 2010.   On June 18, 2010, Quality moved for summary judgment on the twenty-first and twenty-second counts of the complaint.   On July 6, 2010, the plaintiff filed an objection to the motion for summary judgment.   On July 15, 2010, Quality filed a reply to the plaintiff's objection and on July 23, 2010, the plaintiff filed a surreply.   The plaintiff filed a supplemental surreply on August 23, 2010.   Oral argument was heard on the motion for summary judgment on August 23, 2010.

Quality filed supplemental affidavits on August 24, 2010.   On September 10, 2010, the plaintiff filed a second supplemental surreply in support of his objection to the motion for summary judgment.   On September 17, 2010, Quality moved to strike the plaintiff's second supplemental surreply on the ground that adverse parties must file supporting affidavits and other evidentiary materials at least five days prior to the consideration of a motion, pursuant to Practice Book § 17-45.¹  Quality argues that the plaintiff is attempting to submit new evidence subsequent to the close of the hearing on the motion, which is impermissible under the Practice Book and unfair as an effort to “sandbag” Quality.

The court notes that the plaintiff's second supplemental surreply addresses the issue of whether the plaintiff is a third-party beneficiary to the contract between Quality and BCG/Gebo, an issue that Quality raised for the first time at oral argument.   In response to this new argument, the plaintiff submitted the answer to a request for admission directed at BCG, in which BCG states that “[w]ith respect to each of the ․ subcontractors, it was my intent, and I believed that it was the intent of each subcontractor, that the contracts or agreements that I made with each subcontractor for the work performed or the materials supplied would extend to the purchaser of [the house].”   The court also notes that Quality, itself, submitted two affidavits subsequent to oral argument, which also addresses the third-party beneficiary issue.

“The design of [the Practice Book] rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”   Practice Book § 1-8.

The court finds that it would be unjust to strike the plaintiff's second supplemental surreply, particularly in light of the fact that Quality raised the third-party beneficiary issue for the first time at oral argument and submitted its own affidavits for the court to consider subsequent to that argument.   The motion to strike is denied.

Cosgrove, J.

FOOTNOTES

FN1. Practice Book § 17-45 provides, in relevant part:  “[A motion for summary judgment] shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs ․ Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”.  FN1. Practice Book § 17-45 provides, in relevant part:  “[A motion for summary judgment] shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs ․ Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

Cosgrove, Emmet L., J.